RAM Vs. KEWAL RAM

JUDGEMENT

(1.) The above Second Appeal has been filed by the Defendants in Civil Suit No. 118 of 1988 on the file of Senior Subordinate Judge, Kangra at Dharamshala having lost before both the courts below. The Respondent-Plaintiff filed the suit for declaration that the suit property is in joint possession of Plaintiff with Defendant No. 1 as co-sharers and that the entry in the colo(sic)n of remarks of correction vide Rapat No. 137 dated 4.11.1986 in favour of Defendants No. 2 and 3 who are the real sons of Defendant No. 1, as Kast and Kabza Swaim without rent because of relation" is wrong, a collusive entry, null and void entry as the same has been effected in collusion with Defendant No. 1 just to eliminate the 1/2 share of the Plaintiff in the suit land and that the correction order dated 18.10.1986 of Assistant Collector, Palampur is wrong and liable to be set aside having been passed ex-parte and without the knowledge of the Plaintiff and the suit land be directed to by recorded in the joint possession of Plaintiff and Defendant No. 1 as co-sharers with consequential relief of permanent injunction against Defendants No. 2 and 3 restraining them from interfering in the suit land or in the alternative for joint possession in favour of the Plaintiff with Defendant No. 1 as co-sharers of the suit land and against Defendant Nos. 2 and 3, if they are found to be in actuate-possession.

(2.) The case of the Plaintiff is that the land comprised in Khata No. 24, Khatauni No. 63, Khasra Nos. 379, 380 and 385 and 387 measuring O-22-20 Hectares situate in Mehal Bhatarka, Muaza Bandle, Tehsil Palampur, District Kangra stands entered in the ownership of the Plaintiff and Defendant No. 1 as co-sharers and the name of Defendant No. 1 is entered in the column of possession, as in possession as co-sharer as could be seen from the Jamabandi for the year 1985-86 which has been filed with the plaint. The Plaintiff claims that he himself and the first Defendant inherited the property from their father and that the first Defendant in collusion with Defendants No. 2 and 3, who are his real sons, and who have no right, title or interest in the suit land de hors the first Defendant has manipulated the records and managed to get orders in their favour which according to the Plaintiff is not legal, valid or in any manner binding against the Plaintiff.

(3.) The first Defendant filed a separate written statement and Defendant Nos. 2 and 3 also filed a separate but common written statement disputing the claim of the Plaintiff. Having regard to the nature of the submissions made I consider it necessary to advert, at this stage, to the nature of defence that has been taken both in the form of preliminary objection as also on merits. As part of the preliminary objection, it was contended that the Plaintiff has no cause of action, that he is estopped from filing the suit by his act and conduct, that the suit in the present form is not maintainable, that the suit is bad for non-joinder of necessary parties, that the Plaintiff has no locus standi to file the suit and the suit is barred(sic) by limitation and not valued properly also. On merits, the first Defendant whose claim really matters for consideration for the reason to be noticed hereinafter, claims that the correction order by the revenue authorities is binding on the Plaintiff, that subsequent to the death of the father there had been a family settlement as per which the property in question came to be exclusively owned and possessed by the first Defendant that the first Defendant had also discharged certain debts and sale of the property by getting the property released from such proceeding and on that account also the first Defendant became exclusive owner of the property. An half hearted plea that the replying Defendants have/become also the owner of the suit land by adverse possession since 1964-65 ever if their title is not proved and the suit is barred by limitation was also reiterated. So far as Defendants No. 2 and 3 are concerned apart from projecting the rights of the first Defendant as stated by him in his written statement, it was stated that Defendants No. 2 and 3 were cultivating the same to the exclusion of the Plaintiff and the said fact has been brought on record by appropriate correction in the (sic) and the same is binding on the Plaintiff.