SUNDER Vs. HUKMI DEVI

JUDGEMENT

(1.) The present plaintiffs filed a suit for declaration and as a consequential relief of permanent injunction, praying for the following reliefs: "It is, therefore, respectfully prayed that in view of the facts stated above, a decree with costs of the suit in favour of the plaintiffs and against the defendants declaring that the plaintiffs are owner in possession of 1/3 share of land detailed in para No.l of this plaint and more precisely Khasra Nos. 470,485, 551, 553, 560 in mauza Fathe Pur, Hadbast No. 447 and Khasra Nos. 1261, 1266, 1329, 133?, 1396, 1410, 1415 as entered in Khewat No.5 KhatauniNo.8, JamaSandi for the year 1980 -81 of Mauja Lunadha, Hadbast No.448, actually owned by defendant No.2 and cultivated by the plaintiffs as tenants the proprietary right of which were transferred in favour of defendant No.l who has lost the rights of ownership by the operation of H.P. Tenancy & Land Reforms Act and Rules and by way of consequential relief a permanent injunction re -straining the defendants from interfering in the ownership of the plaintiffs in the suit land described above and further restraining her from alienating the land to any body else may kindly be passed or any other relief which in the circumstances of the case the learned Court deems it fit may kindly be granted in favour of the plaintiffs and against the defendants."

(2.) Plaintiffs case as put up in the plaint hat been that they were recorded in the revenue record vide Jamabandi for the years 7.983 -84 as co -shares in possession of the land described under para No. 1 of the plaint. According to them, predecessor -in interest of the parties separated before 1947 and mere was a disruption in joint Hindu family and the status of the individuals was that of individual owners on the basis of private partition having taken place prior to 1947. It was further pleaded that their separate possession as owners was -recorded showing HISEDAR KASHT of the respective parries in the Jamabandi for the year 1953 -54 in which the plaintiffs were recorded in cultivating possession of Khewat No.6/1 Khatauni No. 7/1 and Khatauni No.l. Smt. Nardu and Smt. Gulabi defendant No.2 and predecessor in interest of proforma defendant were recorded in possession of Khewat No.6/1 Khatauni No.9 and 10. According to plaintiffs, Smt. Nardu and Gulabi Getting were getting land cultivated through Shri Lakhiya S/o Kanhu Caste Gujjar, as non -occupancy tenant in Khatauni No. 10. Plaintiffs further case has been that during the settlement operation in the year 1968 and 1969, defendant No.2 Smt Gulabi and Smt Nardu deceased got the land from Shri Lakhiya aforesaid tenant and also separate themselves and on partition inter -state, Smt Gulabi handed over the possession of the land to the plaintiffs and since then, the plaintiffs were cultivating the land, but the plaintiffs have been wrongly described as joint owners in possession of the said land. This mistake, according to plaintiffs, was obviously created during settlement operation due to the fact that the plaintiffs were cultivating their own land as owners and the land described above belonging to Smt. Gulabi as tenant and the entire land was under the cultivating possession of the plaintiffs. It has also been pleaded that on the basis of these wrong entries showing the land under joint cultivating were persisting in the revenue record, but the factual position on the spot was quite different and the plaintiffs were, as such, cultivating the land of Gulabi defendant No. 2 upto 24 -06 -1986 and were paying 1/4 share of the produce to Smt Gulabi of the land described above. It was also averred by the plaintiffs became owners of the land on 24 -04 -1986 when Smt. Gulabi alienated the land in favour of defendant No. I who is not a protected land owner as defined under the H.P. Tenancy and Land Reforms Act 1974 and the plaintiffs had become full owners of the land described in the plaint and defendant No.l had lost, all rights, title and interests in the land under Section 104 of the HP Tenancy & Land Reforms Act As the defendant did not admit the claim of the plaintiffs, accuse the suit for declaration and injunction was filled.

(3.) Defendants 1 and 2 contested the suit and they took various preliminary objections, i.e., that the suit was not maintainable in the present form; that the plaintiffs were estopped by their own acts and conduct from filing the present suit and that the suit v/as barred by limitation. On merit, the case of the plaintiffs, as laid, was not admitted. However, it was pleaded that one Padamu had three sons named Joni, Pohle and Dara. Dara left behind widow Mst. Gulabi Devi, defendant No.2 and Pohlo left behind his widow Mst. Nardu. It was also pleaded that Joni had three sons, the plaintiffs, Paras Ram Kishan and Sunder Singh and thus, the status interalia was that of co -sharers and the land was joint and un - partitioned. It was also pleaded in the written_ statement that there had never been any partition as alleged by the plaintiffs. Mst. Gulabi defendant No.2 being widow was alleged to be in joint ownership and possession of the suit land with the plaintiffs. According to defendants, defendant No.2 gifted her share in favour of defendant No. 1 and no possession was over handed over to the plaintiffs as alleged by them in the plaint as tenant. The status was that of co -owner and co -sharers. The entries in the record of rights were alleged to be correct. Defendant No.2 as referred to above, had transferred her share in the suit land in favour of defendant No. 1 through a valid gift deed dated 24.6.1986 and since then defendant No. 1 had stopped into the shoes of defendant No.2 and, *ius, the status of defendant No. 1 with the plaintiffs was that of co -sharer. It was prayed that the suit be dismissed.