Rajiv Sharma, J. - (1.) THIS Regular Second Appeal is directed against the judgment and decree dated 3.4.2001 rendered by the Additional District Judge (1) Kangra at Dharmashala in Civil Appeal No. 98 -K/98.
(2.) "Key facts" necessary for the adjudication of this Regular Second Appeal are that predecessor -in -interest of respondent -plaintiff, Sandhya Devi (hereinafter referred to as the "plaintiff" for convenience sake) filed a suit for declaration and in the alternative for possession against the appellants -defendants (hereinafter referred to as the "defendants" for convenience sake). The suit was filed to the effect that plaintiff was owner in possession of the land as detailed in the head note of the plaint and entries of tenancy in favour of defendants in the revenue record were wrong, illegal and unauthorized. The defendants or their predecessors were never inducted as tenant by the plaintiff. The suit land was under mortgage and redeemed by the plaintiff vide Rapat Roznamcha No. 27 dated 18.9.1992 on the basis of order of Senior Sub Judge, Dharamshala. In the alternative, plaintiff also prayed that in case it was found that plaintiff is not entitled to the decree as per prayer "A" then he be granted a decree for possession in respect of the suit land. The suit land was under mortgage with mortgagee and the same was got redeemed vide judgment dated 31.7.1991 rendered by the Senior Sub Judge, Dharamshala in Civil Suit No. 158/74. The possession was also delivered to the plaintiff on 18.9.1992 by the Senior Sub Judge, Dharamshala on the spot vide rapat roznamcha No. 27. Mutation No. 417 was entered to this effect. Neither the defendants nor their ancestors were inducted as tenant, hence, the entry of tenancy after redemption of the mortgage was stated to be wrong, illegal and null void. Suit was contested by the defendant. According to him, the land was under the tenancy prior to the inception of the mortgage and if it was not so proved then the tenant of the mortgagee was a tenant for all intents and purposes and in that event also, the defendant was tenant over the suit land. He has become owner of the suit land.
(3.) PLAINTIFF filed replication. Sub -Judge 1st Class framed issues on 3.1.1994. The suit was decreed by the Sub -Judge 1st Class on 20.8.1998. Defendants feeling aggrieved by the judgment and decree dated 20.8.1998 preferred an appeal before the Additional District Judge (1), Kangra at Dharmashala. He dismissed the same on 3.4.2001. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law on 20.8.2001. 1. "Whether the courts below have failed to appreciate evidence on its proper and legal sense and specially has failed to take into consideration the documentary evidence pertaining to the revenue record Ex. D -1 to D -6? 2. Whether the courts below have failed to take adverse inference of the fact that plaintiff has not examined himself as a witness and has not put himself for cross -examination. Therefore, adverse inference was required to be taken as per the settled law decided in cases (1) Kamla Devi v. Dev Raj -RSA No. 531 of 2000 decided on 13.11.2000, (2) Harswaroop v. Ramlok Sharma, Civil Revision No. 272 of 1996 decided on 30.5.2000, (3) Gurdev v. Gulabo R.S.A. No. 302 of 1992 decided on 24.4.2000 and (4) Vidya Dhar v. Mankikro & others, : AIR 1999 SC 1441 -;