PARTAP CHAND Vs. GIRDHARI LAL

JUDGEMENT

(1.) Feeling aggrieved by the judgment and decree dated May 18, 1993 passed by the learned Additional District Judge, Kangra at Dharamshala thereby confirming the judgment and decree dated November 23, 1991 passed by the learned Sub Judge, Dharamshala, the appellant (hereafter referred to as the defendant) has preferred the present appeal.

(2.) Brief facts leading to the presentation of this appeal are that the respondents (here -after referred to as the plaintiff) instituted a suit for grant of decree for declaration to the effect that the plaintiffs are co -tenants with defendant of the land bearing KhataNo.95 min. Khatuni No. 169 Khasra No. 36, 37, 38, 39, 41, 42, plots 6, area measuring 1 -47 -22 hects. and KhataNo.81 min, Khatuni No.153, Khasra No.72 areas measuring 0 -19 -98 hects. mal. Rs.0 -95 paise, situated at Mohal Chandrun, Mauza Shahpur, Tehsil and District Kangra as entered in the Jamabandi for the years 1982 -83 having 2/3rd share in the joint tenancy land with the defendant who has got l/3rd share. The plaintiffs are entitled to remain in possession as co -tenants with defendant on the suit land in future also. The entry showing the defendant in possession d £ the suit land as tenant on payment of rent in only a paper entry having been made without the consent and knowledge of the plaintiffs, it has been made unauthorisedly, illegally and without justification and that the plaintiffs inherited the tenancy rights with defendant after the demise of their father and the defendant has no right to dispossess the plaintiffs from the land in suit in any manner what -so -ever, the defendant is liable to be restrained by grant of permanent prohibitory injunction from dispossessing the plaintiffs from the suit land and be restrained from doing the aforesaid acts in relation to the land in suit." The case of the plaintiffs, as made out in the plaint, is that the land in suit was held by the father of the parties and after his death the land devolved on the parties whereby the plaintiffs succeeded, to 2/3rd share and the defendant to l/3rd share in the land and thus the parties became joint tenants of the suit land to the extent of the aforesaid shares. However, there is a wrong entry solely in the name of the defendant in the Revenue record which appears to be a clerical error. Thus, taking advantage of this wrong entry showing the defendant as the sole tenant of the suit land, the defendant in the month of August 1987 started cutting grass from the suit land and obstructed the plaintiffs from so doing, claiming exclusive tenancy and possession. Hence the suit.

(3.) The defendant contested the claim of the plaintiffs. In his written statement he raised the preliminary objections that the suit was not maintainable in the present form as the defendant is in possession of the suit land exclusively since 1970 and has become owner of the suit land, that the plaintiffs have no cause of action and locus standi to sue, that Civil Court has no jurisdiction, that the suit is not within time and that the suit is bad for non -joinder and misjoinder of necessary party and cause of action. On merits, while denying the claim of the plaintiffs it was averred that the land was never held by the father of the parties as a tenant and no right could devolve on his death. The defendant claimed to be the sole tenant in exclusive possession of the suit land since 1970 and denied existence of joint tenancy and possession of the plaintiffs over the suit land and claimed that the tenancy was never inherited from the father of the parties, as alleged.