JAISHI RAM Vs. GIRJA NAND

JUDGEMENT

(1.) This second appeal under Section 100 of the Code of Civil Procedure has been preferred by the legal representatives of deceased defendants 2 and 3 (hereafter referred to as the appellants) against the judgment and decree dated 31.5.2000 passed by the learned Additional District Judge, Shimla, confirming the judgment and decree dated 30.11.1994 passed by the learned Sub Judge, Theog, in Civil Suit No. 127/1 of 1990.

(2.) Brief facts leading to the presentation of this appeal are that the appellants/plaintiffs 1 to 5 (hereafter referred to as the respondents) instituted a suit against deceased defendants Bhegtu and Daulat Ram (now represented by the appellants and proforma respondent No. 6, Jaishi Ram, appellant No. 1) and proforma respondents 7 to 13 for respondents from causing any obstruction to the plaintiffs in the use and enjoyment of the land comprising khasra No. 510, measuring 8 bighas 16 biswas, situate in Chak Arhiyala, Teh. Kotkhai or to the extent of 5 bighas 16 biswas (hereafter referred to as the suit land) which is in possession of the respondents/plaintiffs. The case of the respondents/plaintiffs as made out in the plaint, is that one Jhrangu, predecessor in interest of the respondent/plaintiffs purchased the suit land in Asauj 1982 B.K. for consideration from the predecessor in interest of the appellants/defendants and proforma respondent and mutation No. 502 dated 4.2.1993 B.K. was accordingly attested. A suit, however, was filed by deceased defendants Bhagtu and Daulat Ram and appellant No. 1 Jaishi Ram for declaration that they alongwith one Hari Chand, predecessor in interest of proforma respondents 7 to 13 are the owners of the suit land and the aforesaid mutation in favour of Jhrangu was brought about fraudulently and for possession of 5 bighas 16 biswas out of the suit land, which was admitted to be in possession of Jhrangu. The suit was decreed by the learned Sub Judge, Rampur on 24.9.1951. The decree passed by the learned Sub Judge was affirmed by the learned District Judge, Mahasu, but the judgments and decrees were set aside by the Judicial Commissioner, HP. in Second Appeal No. 12 of 1952, decided on 27.4.1953 and said Jhrangu was held owner in possession of the suit land to the extent of 5 bighas 16 biswas and the suit for declaration and possession to the extent of 5 bighas and 16 biswas was dismissed and was allowed only to the extent of 3 bighwas. Said Jhrangu died and his estate was inherited by his sons Krishnu and Girja Nand. Said Krishnu has also died and respondents/plaintiffs 2 to 5 are his legal heirs and respondents/plaintiff No. 1 is the legal heir of said Girja Nand. As such, the respondents/plaintiffs are the co -owners in possession of the suit land to the extent of 5 bighas 16 biswas, whereas the appellants/defendants and proforma respondents/defendants had no right and title in the suit land except to the extent of 3 bighas. However, by show of force, they threatened to occupy the whole of the suit land to dispossess the respondents/plaintiffs and tried to dispossess them from the suit land in the month of August, 1990. Hence the suit.

(3.) Appellant/defendant No. 1 and the original defendants Bhagtu and Daulat Ram (now represented by the appellants and proforma respondent No. 6) contested the suit. In their written statement, they raised the preliminary objections that it was not maintainable and was bad for non -joinder of necessary parties. On merits, purchase of suit land by Jhrangu was denied. Institution of the earlier suit has been admitted. It is, however, claimed that part of the suit land, measuring 5 bighas 16 biswas was given by one Manoharu to Jhrangu for cultivation as licensee. The inheritance of estate of deceased Jhrangu by the respondents/plaintiffs is not disputed but it has been specifically denied that Jhrangu and the respondents/plaintiffs were in possession of 5 bighas 16 biswas of the suit land for the, last 37 years and the averments in this regard as made in the plaint are false and wrong and are concocted. It is also claimed that the suit is mala fide and the respondents/plaintiffs have not come to the court with clean hands and have suppressed material facts. It is further averred that Jhrangu was ousted from possession of 5 bighas 16 biswas out of the suit land in the year 1954 and thereafter the land measuring 5 bighas 16 biswas remained in possession of the appellants and proforma respondents/defendants exclusively, openly, peacefully, continuously and without any interruption whatsoever from the respondents/plaintiffs or from their predecessors in interest. It is also claimed that said Jhrangu filed a civil suit against appellant No. 1/defendant and deceased defendants Bhagtu and Daulat Ram for declaration and possession of the suit land in the year 1954. The suit, however, was dismissed in the year 1955. The possession of the appellants and proforma respondents/defendants and their predecessors -in -interest has duly been recorded in the revenue records. The right, title and interest of the respondents/plaintiffs, if any, in the suit land stood extinguished by lease of time and adverse possession. Therefore, being out of possession, the suit for injunction is not maintainable.