GHANSHYAM AND OTHERS Vs. HETU AND OTHERS

JUDGEMENT

(1.) Aggrieved by the judgment and decree passed by the learned Courts below concurrently, the appellants/plaintiffs have filed the instant appeal assailing therein the judgments and decrees so passed against them.

(2.) The predecessor-in-interest of the appellants filed a suit for declaration with consequential relief of possession qua the land contained in Khewat Khatauni No. 207 min/380, new Khata Khatauni No. 132 min/346 min old, under Khasra No. 11 measuring 0-5-4 bigha situated in village Majhetal, Illaqua Balh, Tehsil Sadar, District Mandi on the ground that even though the same was recorded under the ownership and possession of defendant No.1 in the revenue record, but the entry with regard to the possession of the suit land in the name of defendant No.1 was wholly wrong, illegal, incorrect and contrary to the factual position on the spot. It was averred that the suit land was previously owned by one Jagdishwar Datt and was recorded under the possession of Khunthi as non-occupancy tenant, who then acquired the proprietary rights over the same under the provisions of H.P. Abolition of Big Landed Estate and Land Reforms Act or the H.P. Tenancy and Land Reforms Act and then gave the suit land for cultivation to the plaintiff, who was continuing in possession of the suit land since long. Khunthi after having acquired the proprietary rights of the suit land, effected a gift deed of the same in favour of defendant No.1 and though the said gift was without delivery of actual possession in favour of defendant No.1, the same was void, yet entries had been incorporated in the name of defendant No.1 in the revenue record showing him the owner in possession of the same and tried to forcibly dispossess the plaintiff from the suit land, but such attempt was foiled by the plaintiff and consequently defendant No.1 through his next friend and mother filed Civil Suit No.91 on 15.6.1968 against the plaintiff and his wife in the Court of Senior Sub Judge, Mandi. After a protracted trial, defendant No.1 entered into a compromise with the plaintiff and after having obtained valid permission from the Court for effecting compromise on an application moved by the next friend of defendant No.1, she effected a compromise with the plaintiff on 28.1.1970 wherein the possession of the plaintiff over the suit land was recognized and the next friend of defendant No.1 sold the ownership rights of defendant No.1 over the suit land to the plaintiff after receiving sale consideration of Rs.1050.00 in the presence of the Court and on the basis of this compromise effected between the parties, the suit of defendant No.1 was dismissed by learned Senior Sub Judge on 28.1.1970 as withdrawn. It is after dismissal of the suit, the plaintiff was enjoying the suit land as an owner. However, since the revenue entries were not changed, therefore, defendant No.3 instigated defendant No.2 to sell the suit land to him after obtaining permission from the Court under Sec. 8 of the Hindu Minority and Guardianship Act by acting defunct guardian of defendant No.1, despite the fact that defendant No.1 had never been in the care and custody and residing with defendant No.2. The defendant No.2 through defendant No.1 filed an application to the learned District Judge on 4.9.1978 for obtaining permission for selling the suit land on behalf of defendant No.1 in favour of defendant No.3. In this application, the plaintiff filed objection and clearly asserted that he was exclusive owner in possession of the suit land and revenue entries to the contrary were wrong, incorrect, illegal and void, but without deciding the real point at issue, the learned District Judge treating the proceedings to be of summary nature, accorded permission to defendant No.2 on 31.8.1979 and on the basis of the aforesaid order, defendant No.2 sold the suit land to defendant No.3 through registered sale deed No. 607 dated 29.9.1979 for an alleged consideration of Rs.4000.00 which sale is illegal, void, inoperative and against the plaintiff in view of the fact that defendant No.1 was no more the owner nor was in possession of the suit land. It was further averred that even the order passed by learned District Judge was also wrong, illegal, void and not a valid one. It was further averred that defendant No.3 under the garb of invalid and void sale of the suit land in his favour had forcibly dispossessed the plaintiff from the possession and enjoyment of the suit land on 13.10.1979 and his possession was only that of a trespasser and should be restored back to the plaintiff, hence the suit.

(3.) Defendant No.1 Kala Devi contested the suit by filing written statement wherein preliminary objections regarding maintainability, nonjoinder and mis-joinder of necessary parties, jurisdiction, cause of action, estoppel and suit being time barred, were raised. On merits, it was averred that the suit land was initially in the physical possession of the minor and thereafter the sale of the same through Doda Ram guardian of the minor the possession had been delivered to defendant No.3, who had also constructed a house over the land in question prior to institution of the suit. It has been admitted that Khunthi had acquired the proprietary rights, however, the plea regarding the sale was denied and it was contended that mother of the minor defendant No.1 had now sold the suit land for Rs.1050.00 as alleged. It was further submitted that there were other cases pending investigation before the police and before the Court of law and she withdrew all the cases as she was a poor lady and it was difficult for her to face the plaintiff. However, the possession of the suit land was with the minor Hetu and he was never dispossessed from the suit land. As regards the compromise, it was averred that the alleged compromise was not effected with free will of the replying defendant and it was a result of fraud, coercion and undue influence on the part of the plaintiff. It was further averred that the alleged compromise was never exhibited before the Court and contents of the deed were wrong and the defendant signed the alleged compromise for the purpose of withdrawing the case and not for any other purpose as alleged by the plaintiff. The defendant justified the sale made by defendant No.2 Doda Ram on behalf of defendant No.1 in favour of defendant No.3 and would contend that the same is valid.