SHASHI BALA Vs. SHANKRU

JUDGEMENT

(1.) The defendants, standing aggrieved, by concurrently recorded verdicts, respectively, by the learned trial Court, upon, Civil Suit No. 139/1 of 1995, and, latter by the learned First Appellate Court, upon, Civil Appeal No. 40-S/13 of 2003, wherethrough, the plaintiff's suit, vis-a-vis, suit khasra number stood decreed, hence, institute the instant appeal before this Court, and, therethrough hence strive their reversal.

(2.) Briefly stated the facts of the case are that the deceased plaintiff One Shankru had filed a suit for possession of land and house comprised in Khata No.9/51 min, Khasra No.485/268, measuring 7 biswas, situate in mauja Barog, Pargana Bharoli, Kalan, Tehsil and District Solan, H.P. with the allegations that previously the suit property was owned by the plaintiff, who had transferred the same in the name of his wife Smt. Sundri, who had constructed a house subservient to the need of agriculture with respect to her adjoining land in Khata No.10/52 min and, other land. After the death of Smt. Sundri her estate has devolved upon the plaintiff and mutations No.438 and 525 have been attested. The house constructed over Khasra No.485/268 consisted of two rooms in the basement and two rooms in the upper side adjoining the Kalka Shimla Highway. The defendant No.1 and Shri Inder Sain Sethi desired to purchase the suit property but being non agriculturist could not do so and some wrong documents was got executed which were resiled with by Smt. Sundri, the then owner and per agreement the house over the suit property was given on rent at the rate of Rs.200/- per month to Smt. Shashi Bala, defendant No.1 and, all the documents executed between Smt. Sundri and Shashi Bala and Inder were treated as cancelled and a sum of Rs.15,000/- paid on 20.07.1980 was agreed to be adjusted towards the rent upto August, 1988. The payment was adjusted and the notice terminating the tenancy was served on the defendants for delivery of the vacant possession of the house on or before 1.10.1994. The defendant No.2 Bhagat Ram is a relative of defendant No.1 in order to put pressure upon Smt. Sundri filed a suit for injunction qua the suit property, on the basis of some fake agreement in which learned District Judge, held the defendant No.2 to be in possession of the suit property and he was liable to be dispossessed in due course of law per judgment dated 13.4.1994, in case No.444/1 of 1989. The agreement was of 1981 whereas there was bar on purchasing of land by non agriculturist by dint of the provisions contained in Section 118 of the H.P. Tenancy and Land Reforms Act. Defendants No.1 and 2 had added 2 rooms more in the said existing construction without the consent of the plaintiff illegally and had no right to remain in occupation of the same and are liable to deliver the vacant and peaceful possession of the house to the plaintiff. Shashi Bala also filed suit No.414/1 of 1988 in the year 1988 against Smt. Sundri for injunction in respect of Khasra No.268/1 to the extent of 2 biswas 9 biswansi out of 7 biswas which suit was decreed partly only with a liberty to recover possession in due process of law and appeal against the judgment was filed whereby the suit was remanded on account of the amendment sought. The defendant No.2 had stated that the defendant No.3 was in possession of the part of the property. The plaintiff after reserving his right to recover mesne profits has filed this suit for possession of the suit property.

(3.) The defendants contested the suit and filed written statement, wherein they have taken preliminary objections qua maintainability, cause of action, resjudicata, misjoinder4 of defendants No.2 and 3 as parties, valuation, estoppel, acquisition of title by the defendant by way of adverse possession and limitation. estoppel, res judicata etc. On merits, the defendants averred that Smt. Sundri and Shankaru owners of the property had agreed to sell the property in favour of defendants No.1 and 2 by a valid agreement and received consideration. The defendants were owners in possession of the suit property. Smt. Sundri had admitted the receipt of consideration before the Tehsildar. Shri Inder Sain Sethi did not agree to pay rent at the rate of Rs.200/- per month to Smt. Sundri and Shankaru. The documents were also not cancelled and validity of the documents was upheld by Senior Sub Judge, Solan. Sh. Bhagat Ram defendant No.2 was an agriculturist and suit regarding 2 bighas 11 biswas land on the basis of agreement and tatima was decreed by Senior Sub Judge, Solan. The suit against Sh. Bhagat Ram cannot be clubbed with the suit against Smt. Shashi Bala as the cause of action were different and sales took place at different times. The sale appertaining to a house which was not subservient to agriculture and the plaintiff was not entitled to take advantage of H.P. Tenancy and Land Reforms Act. There was no relationship of landlord and tenant between the parties, and, the possession of the defendants was also not unlawful. The suit was hit by Section 11 and Order 2, Rule 2 CPC.