KISHORI LAL Vs. PINGLA DEVI

JUDGEMENT

(1.) The above second appeal has been filed by the Plaintiffs in C.S. No. 32/84/11/1987 on the file of the learned Sub Judge (III), Dharamsala who succeeded before the learned trial Judge but lost before the learned first appellate Judge challenging the judgment and decree dated 11.11.1992 passed by the learned Additional District Judge (I), Kangra at Dharamsala in C.A. No. 120 of 1988. The Plaintiffs filed the suit for a declaration that they are the owners in possession of the land measuring 0-02-12 hectares along with trees standing thereon as entered in Khata No. 77 min, Khatauni No. 12 min, Khasra No. 1077/722 present part of Khasra No. 439/1 Jamabandi for the year 1980-81, situated in Mohal Rachhialu Mauja Bandi Tehsil and District Kangra, which according to the Plaintiffs was said to have come to the share of the predecessor in interest of the Plaintiffs under a partition with different persons and the predecessor in interest of the Defendants.' The grievance of the Plaintiffs is that in the partition with one Rajmal and Buta who are brothers and since died, and who had a joint Khata No. 57 measuring 25 Kanals in which they had half share each which comprised of Khasra No. 739 measuring 7 Kanals and 8 Marlas as per Jamabandi 1967-68, in the year 1969-70 Khasra No. 439/1 measuring 3 Kanals and 2 Marlas came to the share of the Plaintiffs' predecessor in interest and Khasra No. 439/2 measuring 3 Kanals and 16 Marlas fell to the share of the predecessor in interest of the Defendants and that mutation No. 534 was also sanctioned on 8.6.1976 on that basis. It is claimed that during the last settlement the land comprised in Khasra No. 439/1 was wrongly included in Khasra No. 1071/722 measuring 0-02-12 hectares and recorded in the ownership and possession of the Defendants, although the Plaintiffs' continued in physical possession of the same. It appears that the Plaintiffs moved thereafter an application for correction of the settlement record and by an order dated 3.9.1982 the correction was allowed and mutation No. 88 was sanctioned, but at the same time the Defendants thereafter moved a review petition before the Settlement Officer who also appears to have accepted the same by his order dated 9.3.1983. It is in such circumstances the present suit came to be filed both for the relief of declaration of title and also for permanent injunction and in the alternative for the relief of recovery of possession.

(2.) The Defendants filed a written statement contending that the Plaintiffs. have no locus standi or cause of action to file the suit in question, that the suit is barred by limitation and the Plaintiffs are also estopped from asserting the claim. There is no dispute over the fact that the predecessor in interest of the parties, by name, Rajmal and Buta are related as real brothers. The Defendants claim to be the onwers in possession of the suit land along with trees thereon and that their possession is adverse to the Plaintiffs and their predecessor in interest resulting in perfection title in their favour.

(3.) On the above claims and counter-claims the suit came to be tried. Apart from the oral and documentary evidence adduced in the suit during the course of the trial, in order to effectively resolve the controversy between the parties, the Naib Tehsildar Kangra was appointed as local commissioner to determine the fact whether field No. 1071/722 is part of old Khasra No. 439/1, after a proper measuring of the whole of Khata No. 66. It appears that the local commissioner submitted a report supporting the claim of the Plaintiffs and the said report was acted upon by the learned trial Judge and in the context of appreciation of the materials on record in the light of the report by the local commissioner, the learned trial Judge came to the conclusion that the Plaintiffs are owners in possession of the suit land, that the suit land fell to the share of the Plaintiffs in the partition between their predecessors in interest and the revenue entries showing the Defendants to be owners in possession in respect of the suit land are nothing but mere paper entries and the Plaintiffs are entitled to a decree as prayed for.