NATHU RAM Vs. KALIAN DEVI
LAWS(HPH)-1997-6-14
HIGH COURT OF HIMACHAL PRADESH
Decided on June 04,1997

NATHU RAM Appellant
VERSUS
KALIAN DEVI AND ORS Respondents


Referred Judgements :-

BHAGWATI PRASAD V. CHANDRA MAUL [REFERRED]
GOPALAKRISHNA PILLAI AND ORS. V. MEENAKSHI AYAL AND ORS. [REFERRED]
MANAGOBINDA AND ORS. V. BRAJABANDHU MISRA [REFERRED]
SMT. NEELAWWA V. SMT. SHIVAWWA [REFERRED]
AIR INDIA LIMITED V. ATMA RAM PROPERTIES PRIVATE LIMITED [REFERRED]



Cited Judgements :-

LASHKARI RAM VS. BAKSHI RAM [LAWS(HPH)-2013-10-30] [REFERRED TO]


JUDGEMENT

- (1.)This appeal is directed against the judgment and decree passed by the District Judge, Una in Civil Appeal No. 111 of 1987, dated 12-4-1990. By means of impugned judgment and decree, the lower appellate Court has held that Mangat Ram (hereinafter referred to as Defendant No. 1') is in unauthorised occupation of disputed khasra numbers and not as a tenant and the judgment and decree of the trial Court to that extent was set aside and the appeal was partly accented Nathu Ram (hereinafter referred to as the 'Plaintiff') and Avtar Chand (hereinafter referred to as 'Defendant No. 2') were held to be the owners of suit land but not in possession and the entries in the revenue record showing Defendant No. 1 to be tenant at will under both of them i.e. Plaintiff and Defendant No. 2 are wrong and not binding upon them This judgment and decree of the lower appellate Court has been questioned in this appeal by the Plaintiff.
In order to properly appreciate the respective submissions made on behalf of the parties in this case, it is necessary to refer to a few facts Plaintiff filed a suit for declaration and injunction and in the alternative for possession on the allegations that the land comprised in khasra No. 619 measuring 1 kanal 19 marlas and khasra No. 620 measuring 016 marlas situate in village Amb is owned and possessed by him as well as by Defendant No. 2 Further case of the Plaintiff was that Defendant No. 1 is a clever person, who in connivance with the revenue Patwari and other revenue officials has got a wrong entry entered in the records in his favour showing him to be a non-occupancy tenant under the Plaintiff and Defendant No. 2 in Rabi 1976. On the basis of this wrong entry, he further got incorporated entry of mutation regarding conferment of proprietary rights in favour of Defendant No. 1 which is wrong, illegal and without any basis as well as consent of the Plaintiff and Defendant No. 2. It was further pleaded by the Plaintiff that both he and Defendant No. 2 were the owners in actual possession of the suit land on the spot and on the basis of the wrong and illegal entries Defendant No. 1 is threatening them to take forcible possession of suit land. The said Defendant No. 1 was asked to desist from his unlawful acts, but of no avail. Hence the suit. The suit was contested and resisted by Defendant No. 1 who contested the same on the pleas of Court having no jurisdiction to try the suit, suit being not maintainable and being time-barred On merits, Defendant No. 1 claimed himself to be in cultivating possession of the suit land as tenant-at will on payment of rent under the other parties and having become owner after the coming into force of H.P. Tenancy and Land Reforms Act (hereinafter referred to as the 'Act'). It was specifically denied by him that the entries in his favour are either wrong or illegal.

(2.)In the aforesaid background, the parties went to trial on the following issues:
1 Whether the Plaintiff and Defendant No. 2 are owners in possession of the suit land OPP.

2. Whether Civil Court has no jurisdiction to try the suit OPD.

3. Whether the suit is not maintainable in the present form as alleged OPD.

4 Whether the suit is within time OPP

5. Whether the Defendant No. 1 had been in possession of the suit land as tenant-at-will and has now become owner thereof as alleged OPD

6. Relief

Trial Court found issues No. I and 4 in the affirmative whereas issues No. 2, 3 and 5 were held to be in the negative and consequently the suit of the Plaintiff was decreed. In appeal preferred by Defendant No. 1 before the lower appellate Court the judgment passed by the trial Court was modified and the appeal was partly allowed as detailed hereinabove. It is in this background that the present appeal came to be filed by the Plaintiff against the judgment and decreed passed by the lower appellate Court.

(3.)In this case, from the materials on record one thing needs to be noticed at the very outset that the order of conferment of proprietary rights upon Defendant No. 1 in accordance with the provisions of the Act appears to have been questioned by the Plaintiff as well as Defendant No. 2 and by means of judgment dated 26-11-1986, Collector, Amb vide Ext. PB has set aside the order dated 29-12-1982 passed on mutation No. 3657 conferring proprietary rights in respect of land comprised in Khasra No. 619 measuring 149 marlas and vide Ext. PC. order dated 26-11-1986 in the appeal filed by the Plaintiff and Defendant No. 2 in respect of Khasra No. 620 measuring 16 marlas has set aside the order of Assistant Collector, IInd Grade dated 29-12-1986 and in both the cases the matter was remanded back to the Court below. In the light of Exts. PB and PC which relate to land in suit passed by the competent authority under law, this Court has to examine the plea of Defendant No. 1 raised regarding his tenancy over the suit land It may be appropriate to mention here that nothing to the contrary has been brought on record by Defendant No. 1 to show as to how and in what circumstances the tenancy was created in his favour since Rabi 1976,
So far title of the Plaintiff and Defendant No. 7 over the suit land is concerned, there is overwhelming evidence both oral as well as documentary produced by the Plaintiff Even from the case set up by Defendant No. 1 to defeat the claim made in the plaint, title of both i. e. Plaintiff and Defendant No. 2 is clearly established Needless to point out here that the moment Defendant No. 1 claims tenancy over the suit land under the Plaintiff as well as Defendant No. 2 that too on payment of rent, the ownership of both of them stands admitted In addition to this, mutation No 3657 dated 29-12-1982 was attested in respect of Khasra No. 619 measuring 1 kanal 19 marlas and mutation No 2658 dated 29-12-1982 was attested in respect of Khasra No. 620 measuring 16 marlas Both were admittedly attested in favour of Defendant No. 1 conferring proprietary rights upon him which both were set aside vide Exts PB and PC, respectively.



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