KULDEEP SINGH Vs. KAHAN SINGH AND OTHERS

JUDGEMENT

(1.) By way of this appeal, appellant/plaintiff has challenged the judgment and decree passed by the Court of learned District Judge, Solan, in Civil Appeal No. 42 of 1999, dated 20.03.2003, vide which learned Appellate Court while dismissing the appeal so filed by the present appellant upheld the judgment and decree passed by the court of learned Senior Sub Judge, Solan, in Civil Suit No. 111/1 of 1992, dated 26.05.1999, whereby learned trial Court dismissed the suit for declaration so filed by the present appellant.

(2.) Brief facts necessary for the adjudication of the case are that the appellant-plaintiff (hereinafter referred to as 'plaintiff') filed a suit for declaration to the effect that he and proforma defendants were owners in possession of the suit land comprised in Khata/Khatauni No. 8/12 min., kita 8 measuring 20 bighas, situated at mauja Rihoon, Pargana Bharoli Kalan, Tehsil and District Solan, Himachal Pradesh (hereinafter referred to as 'suit land') and for a decree for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff over the suit land with further prayer that order passed by Assistant Collector 2nd Grade, Solan, in case No. 33/13-B, dated 4.4.1991, was illegal, inoperative and wrong in the eyes of law and same was not binding on the right, title or interest of the plaintiff. Case of the plaintiff was that one Duro was inducted as non-occupancy tenant by predecessor-in-interest of the plaintiff over the suit land who expired about 30 years ago and after her death, suit land remained in possession of the plaintiff as the same reverted back to its real owners and since then, they were coming in possession of the same and were enjoying peaceful possession of the suit land. As per plaintiff, entries in revenue record coming in the name of Duro as non-occupancy tenant qua the suit land remained as such, which fact was not in the knowledge of the plaintiff and the same were wrong and not binding on the right, title or interest of the plaintiff qua the suit land. It was further mentioned in the plaint that Smt. Duro died issueless and had no near relation upon whom the property or right of tenancy could have devolved upon. As per plaintiff, he came in possession over the suit land after the death of Smt. Duro about 30 years back. It was further mentioned in the plaint that Duro had not executed any deed on the basis of which the property could have devolved upon her near relation during her lifetime. As per plaintiff, defendant Kahan Singh by playing fraud and in connivance with revenue staff had got the entries, which were in favour of Smt. Duro, transferred in his name, which were wrong, illegal and not binding upon the plaintiff. It was further mentioned in the plaint that plaintiff applied for correction of revenue entries before Land Reform Officer and order on the same passed by Assistant Collector 2nd Grade on 04.04.1991 against the plaintiff was without any power and jurisdiction and the same was not binding on the plaintiff. It was further mentioned in the plaint that defendant No. 1 taking undue advantage of wrong entries incorporated in the revenue record had threatened the plaintiff to dispossess him from the suit land. On these averments, the suit was filed by the plaintiff praying for the reliefs as mentioned in the plaint.

(3.) The suit was contested by defendant No. 1 who in para 2 of the written statement while denying the claim of the plaintiff stated that Smt. Duro was his real aunt ('Tai'), who was non-occupancy tenant over the suit land after death of Hiroo (husband of Duro) and she was being looked after and maintained by defendant No. 1 and his family members till her death which took place about 25 years back. It was further mentioned in the written statement that defendant No. 1 was coming in possession of the suit land for the last 45 years and was cultivating the same after the death of Shri Hiroo and he cultivated the same even during his (Hiroo) lifetime. As per defendant No. 1, he had become owner of the suit land by operation of law and his possession over the suit land was hostile, open, uninterrupted and to the knowledge of the general public and also owners, if any. It was further mentioned in the plaint that application filed by plaintiff for correction of revenue entries stood decided in favour of defendant No. 1 and even revenue Court had given decision in his favour that he was owner in possession of the suit land. On these bases, the claim of the plaintiff was denied by defendant No. 1.