RAM LOK Vs. AMAR SINGH

JUDGEMENT

(1.) As both these appeals arise out of the common judgment passed by the Court of learned Additional District Judge, Solan, Camp at Nalagarh, in Civil Appeal No. 10-NL/13 of 2008, dated 10.06.2008 and Cross Appeal No. 22-NL/13 of 2008, dated 10.06.2008, therefore, the same are being decided by a common judgment.

(2.) Brief facts necessary for the adjudication of the present case are that respondents/plaintiffs (hereinafter referred to as "the plaintiffs") filed a suit for declaration with consequential relief of injunction and in the alternative for a decree of possession on the grounds that the suit land comprised in Khewat/Khatauni No. 2 min/4, Khasra No. 181, measuring 7 biswas, situated in Village Kalyanpur, Pargana Gullarwala, Tehsil Nalagarh, District Solan, H.P. was owned by them. According to the plaintiffs, in the column of possession of jamabandi for the year 1995-96, name of one Rattan Singh, son of Shingaroo was mentioned and in column No. 9 of jamabandi, it was reflected "Bila Lagan Bavja Tabadla Hamra Aabadi", which entries as per the plaintiffs were incorrect. It was further the case of the plaintiffs that said 0-7 biswas of land was being reflected as Gair Mumkin Aabadi, which was incorrect and only one thatched roof 'Chhan' was there on said land to the extent of 0-0-8 biswansi, whereas the remaining land was open, which was possessed by the plaintiffs. According to the plaintiffs, area measuring 0-6 biswa was open, but the said land was in front of Aabadi of defendant and the said defendant was causing interference in 0-6 and 1/2 biswas land and on 0- 0-8 biswas of land where a thatched roof 'Chhan' stood constructed by defendant a few months back. It was further mentioned in the plaint that plaintiffs had previously filed a Civil Suit No. 84/1 of 2001 against one Shri Rattan Singh, which was decided on 07.11.2002, in which they had successfully challenged revenue entries which were being reflected in favour of Rattan Singh. According to the plaintiffs, said suit was decreed in their favour vide judgment and decree dated 07.11.2002, vide which, learned Court had held the plaintiffs to be owners in possession of the suit land and Rattan Singh was restrained by a decree of permanent injunction from asserting or claiming any right, title and interest over the same. As per the plaintiffs, defendant was grandson of Shingaroo, whereas Rattan Singh was son of Shingaroo and thus, the defendant and Rattan Singh were related to each other as the defendant was his nephew and the factum of judgment and decree having been passed in favour of the plaintiffs in Civil Suit No. 84/1 of 2001 was very much in the knowledge of the defendant. It was further mentioned in the plaint that defendant had filed an application before Land Reforms Officer (Tehsildar), Nalagarh, which was decided on 19.12002 by Tehsildar on the basis of a report of Field Kanungo, Changar and by making the said report of Field Kanungo Changar his base, Tehsildar had passed an order dated 19.12002 ordering correction of revenue record in favour of Ram Lok and against the plaintiffs and had also passed an order in this regard in favour of Ram Lok. According to the plaintiffs, Tehsildar had erred in construing the report of the Field Kanungo to be a correct report, whereas neither Kanungo who had prepared said report was ever examined before Tehsildar nor any opportunity of his cross-examination was afforded to the plaintiffs. As per the plaintiffs, as the application was filed for correction of jamabandi, the same in fact was even not maintainable before the Tehsildar. On these bases, it was stated by the plaintiffs that the order so passed by Tehsildar, Nalagarh, dated 19.12002 was wrong, illegal, inoperative, ineffective and null and void. As per the plaintiffs, they were in possession of the suit land, over which one thatched roof 'Chhan' stood constructed by defendants over 0-0-8 biswansi of land some time back after the Tehsildar had passed his order on 19.1200 It was further mentioned in the plaint that as the suit land was in front of Aabadi houses of defendant, the defendant may take advantage of absence of plaintiffs from the village and may occupy vacant portion, however, since plaintiffs were owners, plaintiffs were also entitled for the possession, if the possession of the plaintiffs could not be proved over the suit land either at the time of filing of the suit or thereafter. On these bases, the suit was filed by the plaintiffs praying for the following reliefs:

(3.) The suit so filed by the plaintiffs was resisted by the defendants, who in their written statement took the stand that father of the plaintiffs Sita Ram was in possession of area in front of his Abadi and in the Aabadi deh which had come to the share of Maghi Singh, father of the defendant in partition. It was further the case of the defendant that they were using the suit land for tethering the cattle by constructing a 'Chhan' thereon and thereafter defendant had separated from joint family in the year 1980 and 0-4 biswas of suit land had fallen to the share of defendant and since then, defendant was in possession of the same as its owner, who was living in the 'Chhan', which was having a bath room as well as a compound. It was further the case of the defendant that he had become owner of 0-4 biswas of the suit land by way of surrender of rights by predecessors of the plaintiffs. In alternative, defendant stated that he had perfected his title over the suit land by way of adverse possession, as his possession over the same was hostile and to the knowledge of the plaintiffs, who had not objected to the same since Nov., 1980. Further as per the defendants, Assistant Collector, 2nd Grade had rightly passed order dated 19.12.2002, which had attained finality as it had not been challenged by way of any appeal or revision etc. It was further the case of the defendant that the entries in the name of Rattan Singh qua the suit land were wrong and illegal and decree, if any, passed in favour of the plaintiffs and against Rattan Singh was not binding upon the defendant. On these bases, defendant resisted the claim of the plaintiffs.