KAPIL DEVI Vs. KALAVATI ALIAS KAMLA VATI

JUDGEMENT

(1.) This second appeal is directed against the judgment and decree of Shri L.N. Sharma, Additional District Judge, Shimla dated 31.5.1995 whereby the appeal of the defendant/respondent Kalavati has been accepted and the decree passed in favour of the plaintiffs/appellants by the learned trial Court of Shri Bhim Chand, i.e. Sub Judge 1st Class, Court No.2. Shimla vide his judgment and decree dated 14.8.1992 has been partly set aside. By that decree the trial Court decreed the plaintiffs suit for declaration in to and held that they are in possession of the suit land, and also detailed in the two judgments below, situated in mauza Panog, Tehsil and District Shimla and for restraining the respondent from interferring in their possession over the suit land. The decree, which has been passed in appeal by the learned Additional District Judge is that the judgment and decree of the trial Court stands set aside and it has been held that the plaintiffs/respondents have no right to interfere in the peaceful possession of the defendant (respondent), till the plaintiff/appellant(s) have taken possession of land from her in due process of law. Hence, the present appeal, in which the defendant - respondent has also filed cross -objections.

(2.) Briefly, the facts are that the plaintiffs/appellants filed a suit for declaration that mutation No. 243 had bast No. 286, Tehsil and District Shimla attested by the Assistant Collector IInd Grade, Shimla on 3.9.1986 is illegal, void and without jurisdiction and die plaintiffs are the owners with possession of the suit land. They also sought the following consequential reliefs: (i) Confirmation of possession of the plaintiffs on the above described land in dispute; (ii) alternatively decree of possession of the above referred land in dispute in favour of the plaintiffs; and (iii) permanent prohibitory injunction in favour of the plaintiffs against the defendant restraining her not to interfere in the possession of the plaintiffs on the above referred land in dispute and not to take any benefit under the above referred mutation No.243 dated 3.9.1986.

(3.) The case of the plaintiffs as pleaded by them is that one Tara Vati, who was issue less had given the entire property to them including the suit land comprised in Khasra No. 117 and 167, total land measuring 4 Bighas 12 Biswas, Mauza Panog, Tehsil and District Shimla. This was done by the gift deed dated 10.5.1960 and some property was also sold to them vide registered sale deed dated 16.9.1965. Thereafter possession was also delivered to them by her. However, the defendant in connivance with the revenue staff had got her name entered in the revenue record as tenant without any base. She was already married and was residing in her in -laws village and she had no concern with the land in dispute. The mutation attested under Section 104 of the H.P. Tenancy and Land Reforms Act is wrong and not binding. The plaintiffs have also challenged the orders passed by the Revenue Courts in appeal and revision and alleged that they are without jurisdiction and non nest. The plaintiffs have also pleaded that the defendant is trying to encroach upon the suit land under the garb of wrong revenue entries and prayed for the said decree.