BABA PRITAM SHAH Vs. KHUSHI MOHAMMAD

JUDGEMENT

(1.) THIS Regular Second Appeal has been directed against the judgment and decree dated 1.8.2003 passed by the learned District Judge, Una in Civil Appeal No. 180 of 1999 and Civil Appeal No. 171 of 1999 whereby he has partially accepted two appeals and modified the judgment passed by Sub Judge, Court No.1, Una in Civil Suit No. 53 of 1990 decided on 25.10.1999.

(2.) BRIEF facts necessary for the adjudication of this Regular Second Appeal are that the appellant -plaintiff (hereinafter referred to as ˜the plaintiff for convenience sake) filed a suit for declaration to the effect that the land comprised in Khasra No. 888, 889, 882 min and 1814/907 measuring 22 kanals 14 marlas after consolidation of holdings new Khasra Nos. 844, 847, 848 measuring 23 kanals 4 marlas was in his occupation as non -occupancy tenant and he has become absolute owner by operation of law. The revenue entries showing the defendants in possession and occupation of the suit land are illegal, void, inoperative and not binding upon him. Consequential mutation No. 2563 and 2643 as well as the sale deed is also illegal and null and void. According to him, he was non -occupancy tenant on payment of Rs. 20/ - per month under Smt. Surindera Devi since 1966. Patwari Halqua found him in possession of the suit land but his name was not entered in the revenue record and the same was recorded in the daily diary of Patwar Circle and the entry was also made in the Khasra Girdawari. He moved an application for correction of revenue entries in his favour before the Assistant Collector IInd Grade. He also requested the Consolidation Department to enter his name in the revenue record but of no avail. His further case is that the predecessor -in -interest of defendant No.1 Smt. Pushpa Devi wife of Bhag Singh and his brother Sh. Amar Singh filed a suit for declaration on 4.4.1978 before the Sub Judge, Una. It was decided in their favour on 8.9.1983. He filed an appeal before the District Judge, Una. The learned District Judge accepted the same. He remitted the case for fresh trial. The defendant moved an application for withdrawal of the case with permission to file fresh on the same cause of action. This application was allowed on 10.12.1987 subject to costs of Rs. 150/ -. Sh. Bhag Singh and his brother Sh. Amar Singh on the basis of judgment rendered by Sub Judge, Una in civil suit No. 75/1 of 1983, got attested the mutation No. 2563 i.e. Ex.P -8 in their favour. Thereafter Sh. Bhag Singh transferred the suit land in favour of Sh. Khushi Mohammad and Nawab Khan. According to him, the defendants were never in possession of the suit land and he continued to be in possession of the suit land as non -occupancy tenant. He also challenged mutation No.2643 i.e. Ex.D -9/5. The sale deed No.509 dated 12.5.1987 executed in favour of Sh. Khushi Mohammad and Nawan Khan was also challenged. The suit was contested by the predecessor -in -interest of Smt. Pushpa Devi and defendants No. 3 to 7 arrayed before the learned Sub Judge by filing a joint written statement. Defendant No.2, namely, Smt. Kashmir Devi did not contest the suit. She was proceeded exparte on 13.2.1991. Defendant No.8 Smt. Surindera Devi supported the claim of the plaintiff. The suit was also contested by the State i.e. defendant No.9. The trial court decreed the suit of the plaintiff on 25.10.1999 and decree for declaration was passed to the effect that he was in occupation of the suit land detailed in the head note of the plaint previously as non -occupancy tenant and later on by operation of law as owner and the revenue entries showing defendants No.1 to 7 in possession of the suit land were wrong and illegal. The sale deed executed by defendant No.1 i.e. Bhag Singh in favour of defendants No. 6 and 7 i.e. Khushi Mohammad and Nawab Khan dated 30.4.1987 was declared null and void. He also passed a decree for permanent injunction restraining the defendants from interfering in his possession and ownership over the suit land.

(3.) THE State of Himachal Pradesh also preferred an appeal against the judgment and decree dated 25.10.1999. The appellant was added as respondent -defendant and Smt. Surindera Devi was added as proforma defendant. It was assigned Civil Appeal No. 180/1999. The learned District Judge, Una allowed both the appeals partly. The judgment and decree passed by the trial court dated 25.10.1999 was modified to the extent that the plaintiff was held entitled only to a decree for permanent injunction against defendants No. 1 to 7 restraining them from interfering in any manner over the land measuring 11 kanals 7 marlas comprised out of khasra No. 888, 889, 882 min and 1814/907 measuring 22 kanals 14 marlas after consolidation of holdings new Khasra Nos. 844, 847, 848 measuring 23 kanals 4 marlas situate in village Bangarh, Tehsil and District Una till the decision of tenancy rights by the Revenue Court or except the vacation/ejectment of the plaintiff in due course of law. This Regular Second Appeal has been directed against the judgment and decree dated 1.8.2003 passed by the learned District Judge, Una in Civil Appeals No. 171/99 and 180/99. The same was admitted on the following substantial questions of law: