SHIV RAM AND ORS. Vs. LUDDER SINGH

JUDGEMENT

(1.) This Regular Second Appeal has been directed against judgment rendered by learned Presiding Officer, Fast Track Court, Mandi, H.P., in Civil Appeal No. 22/99, 69/2004 dated 17.3.2005.

(2.) Key facts necessary for the adjudication of the present appeal are that the plaintiffs -appellants (herein after referred to as 'plaintiffs') filed a civil suit against the respondent -defendant (herein after referred to as 'defendant') seeking declaration to the effect that they are owner -in -possession of the land detailed in para -3 of the plaint on the basis of agreement dated 24.5.1995, with consequential relief of possession. According to the averments made in the plaint, suit land as detailed in para 1 of the plaint was earlier in illegal possession of the parties. Defendant made an application for grant of Nautor land. It was agreed between the parties that after grant of land it shall be divided in three equal shares between the parties. Land was sanctioned in favour of the defendant. However, it was thrown into common stock of the family till 1973. Plaintiffs remained in possession of the land till 24.5.1995 when plaintiffs relinquished possession on the terms and conditions of the family settlement arrived at between the parties. Settlement was reduced into writing on 24.5.1995 whereby plaintiffs relinquished possession in favour of the defendant and defendant also agreed to deliver the possession of the another piece of land which was recorded in joint possession of the plaintiffs and defendant which was recorded in the ownership of the State of Himachal Pradesh. Though defendant agreed to deliver the possession of land which was earlier in possession of the defendant, but in fact, he did not deliver the possession and committed violation of the terms and conditions of the agreement dated 24.5.1995. Defendant filed a suit before the Sub -Judge 1st Class, Sarkaghat. Defendant produced the agreement Ext. PA dated 24.5.1995 and has withdrawn the suit on the basis of family settlement/agreement. It was agreed upon between the parties that if the defendant did not deliver the possession of government land recorded in the ownership of the plaintiffs and also the portion of the land which was sanctioned in favour of plaintiff No. 1 which fell to the share of the defendant, plaintiffs shall be deemed to be in possession of the land mentioned in para -3 of the plaint. Notice was issued to the defendant vide registered AD. However, defendant did not reply and nor did he deliver the possession. Since the terms and conditions of agreement Ext. PA have been violated by the defendant, plaintiffs have become owner of the land mentioned in para -3 of the plaint on the basis of settlement. Possession of the land was liable to be restored to the plaintiffs, on the basis of agreement dated 24.5.1995.

(3.) Suit was contested by the defendant. It was stated that the land described in para -1 was granted to the defendant Ludder Singh while in Army. It was never in illicit possession as alleged by the plaintiffs. There was no such agreement that the land would be divided between the parties. It was denied that the land was thrown in the common stock of the family. Defendant was in possession as owner since land was sanctioned to him. However, in para -5 of the written statement, defendant has admitted that on 24.5.1995 compromise has taken place in the civil suit. It is further stated that the case was pending before the Assistant Collector 1st Grade Sarkaghat qua the government land, of which defendant has 1/3rd share i.e. 0 -06 -00 hectares. Defendant has relinquished his share and is not interfering at all. He has not committed any violation of agreement dated 24.5.1995. It is admitted that on the basis of agreement dated 24.5.1995, suit was withdrawn. He has not interfered after 24.5.1995 in the suit land.