SALAMAT BIWI & ORS Vs. TRIPTA DEVI

JUDGEMENT

(1.) By way of the present appeal, the appellants have challenged the judgment passed by the Court of learned District Judge, Kangra at Dharamshala, (H.P), in Civil Appeal No.14-I/XIII/2005, dated 01.04.2006, vide which, the learned lower Appellate Court, has set aside the judgment and decree passed by the learned Civil Judge (Junior Division), Indora, District Kangra, in Civil Suit No.RBT No.50/98/04, Old No.110/1998, dated 30.11.2004.

(2.) Material facts, necessary for adjudication of this Regular Second Appeal, are that respondent/plaintiff (hereinafter referred to as 'plaintiff') maintained a suit for possession against the appellants/defendants (hereinafter referred to as 'defendants') alleging that plaintiff is owner-in-possession of land till November 1986, comprised in Khata No.35 min, Khatauni No.94, Khasra No.307 and 308, measuring 0-01-15 hectares, situated in Mohal and Mauza Pind Padhian, Tehsil Indora, District Kangra, (H.P) (hereinafter referred to as 'suit land'). As per the plaintiff, she was in possession of the suit land, as owner and she was taking all the benefits therefrom, but the defendant, during settlement operation on February 12, 1985 got himself recorded as 'Kabij' of the suit land in collusion with the Settlement Officials and took possession in the month of November, 1986, illegally and unauthorisedly without consent of the plaintiff. The possession of the defendant over the suit land is illegal, unauthorized and that of a trespasser. Moreover, the defendant has raised temporary construction of structure over the suit land illegally and unauthorisedly. It is averred that the defendant has been asked several times to admit the claim of plaintiff and handover the illegal and unauthorized possession of the suit land, so encroached upon by him, but all in vain.

(3.) Defendant, Murad Ali, resisted and contested the suit by raising preliminary objections qua maintainability, estoppel, locus standi, cause of action, valuation and pleaded that the defendant has become owner of the suit land being tenant. On merits, it is pleaded that forefathers of the replying defendant were tenant and after the death of father, defendant was tenant and after the death of defendant, his legal representatives have become owner-in-possession of the suit land, in view of the H.P. Tenancy and Land Reforms Act. The plaintiff never remained in possession over the suit land, as is evident from the record of rights and defendants also constructed their residential house over the suit land and they are paying 'Chulah' tax regularly. The defendants have also installed an electricity meter in their house and a period of more than 40 years has elapsed. During settlement, defendants were wrongly recorded as 'Kabij'. It is further pleaded that in case, defendants have failed to prove their tenancy, then his possession is open, peaceful, hostile and continuous and well within the knowledge of plaintiff and the same has been ripened into ownership by way of adverse possession.