BABU RAM Vs. GIGU

JUDGEMENT

(1.) This is a defendant's second appeal arising out of a suit for the possession of 38 bighas and 17 biswas of land situated in village Makri, Pargana Kot Kehloor, district Bilaspur. The plaintiffs' case was that the land in suit had been in the occupation of one Mt. Ram Devi, widow of Gobindu. She died on 22nd Phagun, 2007 B. After her death, defendants 1 to 8 took forcible possession of the land, although under Section 59 oi the Punjab Tenancy Act, as applied to Himachal Pradesh, the plaintiffs, as well as pro forma defendants 9 and 10, succeeded to the occupancy rights thereof. Consequently, the plaintiffs prayed that they be put in possession of the land in suit as occupancy tenants.

(2.) The suit was resisted by defendants 1 to 8 on various grounds. Inter alia, it was contended that the plaintiffs and the pro forma defendants were not related to Mt. Ram Devi. It was also denied that the common ancestor, if any, of Gobindu and the plaintiffs, had ever, occupied the land in suit. It was, accordingly, urged that the occupancy rights had been extinguished. Another defence taken was that the land in suit had been mortgaged with the defendants 1 to 8 and, therefore, their possession could not be disturbed.

(3.) The trial Court (Subordinate Judge, Bilaspur) held that one Johri was the common ancestor of Gobindu, no one side, and the plaintiffs and the pro forma defendants, on the other. He, however, came to the conclusion that the land in suit had never been in the occupation of Johri. That learned Judge further held that the defendants 1 to 8 had no mortgagee rights. He, however, non-suited the plaintiffs, in view of his finding that Johri had not been in possession of the suit lands.