BABU RAM Vs. SANTOKH SINGH (DECEASED)

JUDGEMENT

(1.) The present regular second appeal is maintained by the appellant, who was defendant No.2 before the learned Trial Court (hereinafter to be called as "the defendant No.2") , laying challenge to the judgment and decree, dated 15.05.2002, passed by learned District Judge, Hamirpur, H.P., in Civil Appeal No. 86 of 1994, whereby by allowing the appeal, the judgment and decree, dated 04.05.1994, passed by the then Sub-Judge (II) , Hamirpur, in Civil Suit No.194/91, was set aside.

(2.) Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the land entered in Khata No.25 min, Khatoni No.29 min, Khasra Nos. 982, 1192 kita 2 area measuring 58 kanals & 1 marla, as per the jamabandi for the year 1987-88, situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. (hereinafter to be referred as 'the suit land') is in the ownership and possession of the plaintiff and defendant No.1, besides they are also recorded owners of the land entered in Khata No.25 min, Khatoni No.29 min. Khasra Nos. 138, 160, 181, 432, 460, 989 measuring 34 kanals 3 marlas situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. It has been alleged that they have also an old house consisting number of rooms inherited from their father situated in Abadi Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. The suit land situated at a far off place from the ancestral Abadi of plaintiff and defendant No.1 and is called 'Cheli Nala', the same is even called as 'Pani-ka-panga' and 'Rase-dapanga.

(3.) The defendants on entering appearance have contested the suit. They raised preliminary objection so as to maintainability, locus standi and valuation of the suit etc. On merits, while admitting the suit land to be joint of the plaintiff and defendant No.1, being inherited from their father as well as the exchange of the suit land with the plaintiff on 29.1.1987, it has been submitted that the plaintiff did not implement the exchange as he never lodged any report in this behalf with the revenue authorities and also failed to exchange the land in terms of instrument of exchange. Thus, the defendant remained in possession of the suit land throughout. It has been denied that the plaintiff has broken the land or constructed the residential house thereon. It has also been denied that it was the plaintiff who submitted that since defendant No.1, is the owner in possession of half share of the land in possession and as such the same has rightly been sold by him to an extent of half share to defendant No.2/appellant herein.