HIGH COURT OF HIMACHAL PRADESH
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DEVINDER GUPTA,J. -
(1.) The plaintiff has preferred this second appeal against the judgment and decree passed on May 14, 1982 by the District Judge, Una dismissing the plaintiffs appeal and thereby confirming the judgment and decree passed on June 7, 1978 by the Senior Sub -Judge, Una dismissing his suit.
(2.) On January 7, 1975, the plaintiff instituted a suit in the trial Court claiming decree for possession against the defendant -respondent. The plaintiff based his claim on the allegations that the suit property which is 6 marlas of land alongwith one residential house, cow -shed and courtyard was owned and possessed by Ram Chand who by means of a registered deed dated March 27, 1974 had created a mortgage with possession for Rs 300 in his favour. He was holding the property as mortgagee with possession but the defendants for the last 15 days had started creating trouble and interfering with his possession which had given rise to a cause of action to him for claiming a decree for injunction restraining the defendants from interfering with his peaceful possession as mortgagee. In the alternative he prayed that in case the defendants are found to have succeeded in forcibly dispossessing him a decree for possession be granted to him. The suit was resisted by the defendants who denied the title of Ram Chand and also denied the fact that Ram Chand could create a mortgage of the suit property in favour of the plaintiff. It was specifically pleaded by the defendants that there was a residential house and other construction standing upon the suit land belonging to them and they were in possession of the same since the time of their fore -fathers for the last more than 70 years. In para 8 of the written statement, the defendants pleaded that Ram Chand in connivance with the halqa patwari for the last few years appears to have incorrectly got entered his name as owner in possession in revenue records which entry was factually incorrect, illegal, arbitrary and without jurisdiction and was ineffective and in -operative against their rights. In any case it was pleaded that due to the defendants and their predecessors open, peaceful and uninterrupted possession for the last more than 60 years was in assertion of their rights as owners holding it adversely to the knowledge of all concerned and neither Ram Chand, nor the plaintiff had any title to the property.
(3.) As stated earlier, the trial Court dismissed the plaintiffs suit holding that neither the plaintiff, nor Ram Chand was in occupation of the property and the defendants were in possession of the same since the year 1922 -23 holding it adversely to the true owners Feeling aggrieved the defendants preferred an appeal before the lower appellate Court The finding recorded by the trial Court that defendants were in continuous possession of the suit property were upheld and on that basis the decree for dismissal of the suit was also affirmed. However, the lower appellate Court reversed the findings of fact recorded by the trial Court to the effect that possession of the defendants was adverse. Since the plaintiffs suit for injunction or in the alternative for possession stood dismissed, therefore, the instant appeal was preferred by him.;
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