NANDU RAM Vs. BANSI

JUDGEMENT

(1.) The plaintiffs' suit, for, rendition of a decree for declaration, and, also for rendition of a decree for permanent prohibitory injunction, vis-a-vis, the suit khasra number 109, hence, holding an area of 8-16 bighas, stood dismissed by the learned trial Court, and, in an appeal carried therefrom, by the plaintiffs, before the learned First Appellate Court, the latter Court decreed the plaintiffs' suit, and, recorded a verdict declaring the plaintiffs, to be, owners in possession of the suit land, only to the extent of 5.10 bighas, besides in respect thereof, it also rendered a decree of permanent prohibitory injunction, wherethrough, the defendants were restrained, from, interfering with the suit property. The defendants/appellants herein are aggrieved therefrom, hence, institute the instant appeal before this Court.

(2.) Briefly stated the facts of the case are that one Khindu (deceased plaintiff) had instituted a suit for declaration with consequential relief of permanent injunction against the defendant on the allegations that he had been non occupancy tenancy in possession of suit Khasra No 109. The plaintiff had constructed two houses in the suit land in the year 1936, and, had been residing therein. The plaintiff had also constructed one cattle shed in the suit land in the year 1936. The defendant had created usufruct mortgage of the suit land in favour of the plaintiff in the year 1956 for Rs.100.00. The defendant had redeemed the mortgage in 1981. After redemption, the status as tenant of Sh. Khindu, Plaintiff had been revived, and, he had become non occupancy tenant in possession of the suit land under the defendant. The plaintiff had acquired rights of ownership of the suit land with the application of H.P. Tenancy and Land Reforms Act, 1972. The defendant had been Numberdar of revenue estate Sanaur and some other revenue estates. The defendant had been exercising influence over the officials of the revenue department. The defendant had manipulated deletion of entry of tenancy of the plaintiff after redemption of the suit land in 1981 The plaintiff was bound by wrong and illegal entries of the suit land carried out after 1981. The defendant had started interfering with the ownership and possession of the plaintiff over the suit land w.e.f. 1/5/1989. The defendant had been requested not to do so, but without any result. The plaintiff had, therefore, instituted suit for declaration of his ownership and possession of the suit land. It has also been averred that in case the tenancy of the plaintiff over the suit land was not upheld, he had acquired title to the suit land by adverse possession, since he had been in continuous, open and uninterrupted possession of the suit land w.e.f. 1936. The defendant was sought to be restrained from interfering with the ownership and possession of the plaintiff over the suit land. It had also been averred that in case the defendant was successful in taking forcible possession of the suit land or had been otherwise treated in possession, decree for possession of the suit land be passed in favour of the plaintiff and against the defendant.

(3.) The defendants contested the suit and filed written statement, wherein they have taken preliminary objections qua maintainability, estoppel, res judicata etc. On merits, the defendant had refuted the tenancy of the plaintiff over the suit land. It had been averred that in 1936, the defendant as also his predecessor-in-interest Shri Mehlar had not been owner in possession of the suit land. The suit had been mortgaged with possession for Rs.100.00 in favour of the plaintiff by the defendant in 1940. Consolidation operations had been carried out in the revenue estate Sanaur in 1955-56. At the time of consolidation operations, entry of mortgage of the suit land in favour of the plaintiff under the defendant against amount of Rs.100.00 had been carried out. The defendant had redeemed the mortgage in 1981. After redemption, the defendant had been owner in possession of the suit land. The plaintiff could not have acquired rights of ownership of the suit land under the tenancy Act. It had also been averred that the plaintiff had been allotted Khasra No. 222/45/1, 222/45/2 and 222/43/3, measuring 5-8 bighas in the revenue estate Sanaur vide order dtd. 25/8/1975 passed by the Tehsildar, Ghumarwin. The plaintiff had given land obtained by him by way of Nautor in exchange to the defendant and had obtained a portion of the suit land described in Khasra No.265/109, measuring 5.10 bighas from the defendant. The plaintiff had constructed two houses and a cattle shed in the suit land after having obtained land described in Khasra No.265/109, measuring 5.10 bighas from the defendant. It had been averred that lateron Nautor grant of the plaintiff had been rejected on the complaint of proprietors. The defendant had been compelled to deliver possession of Nautor grant obtained by him in exchange in favour of the State. As such stage, the defendant had taken possession of the suit land. It had been averred that in case the construction of the plaintiff in the suit land was proved to have been carried out prior to exchange, the defendant was entitled to possession thereof by demolition of the construction of the plaintiff. The plaintiff had started interfering with the ownership and possession of the defendant of land described in Khasra No.109/1 measuring 3-6 bighas. As such, the defendant had instituted civil suit No.271/1 of 1986 against the plaintiff in the Court of Sub Judge 1st Class, Ghumarwin on 25/11/1986. The plaintiff had agreed for decision of afore civil suit of the defendant against him vide statement dtd. 24/1/1987. As such, civil suit No.271/1 of 1986 of the defendant for permanent injunction had been decreed against the plaintiff. The judgment and consent decree dtd. 24/1/1987 was stated to be bar to the suit of the plaintiff. The plaintiff could not be said to have acquired title to the suit land by adverse possession since he had been a mortgagee thereof and mortgage stood redeemed in 1981. The plaintiff was not entitled to any relief.