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1997 DIGILAW 152 (HP)

MAHINDER SINGH v. LACHOO RAM

1997-05-01

R.L.KHURANA

body1997
JUDGMENT R.L.Khurana, J.: This is the plaintiff’s regular second appeal against the judgment and decree dated 16.9.1988 of the learned Additional District Judge (II), Kangra at Dharamshala, reversing the judgment and decree dated 17.5.1985 of the learned Sub Judge Its Class(II), Nurpur. 2. The subject matter of dispute between the parties is the land measuring 8 kanalas 2 marlas comprising of Khasra No.2 1649-min of Tika and Mauza Suliali, Tehsil Nurpur, District Kangra, specifically described in the plaint and hereinafter referred to as the land in dispute. 3. The plaintiff by claiming himself to be the owner and in possession of the land in dispute filed a suit for declaration and injunction and in the alternative for possession of the land in dispute. It was averred that the land in dispute was being wrongly recorded as in possession of Chet Ram, defendant No.3, as non-occupancy tenant till Kharif 1972 and in Rabi 1973, it came to be wrongly recorded as in possession of Kura, father of defendants 1 and 2, as non-occupancy tenants. Neither Chet Ram nor Kura above named was ever inducted as a tenant by the plaintiff qua the land in dispute The defendants taking advantage of the wrong revenue entries have started interfering with the possession of the plaintiff with the sole object of taking forcible possession thereof. It was further pleaded that in case the defendants were able to take possession of the land in dispute, a decree for possession be granted in favour of the plaintiff. 4. The defendants 1 and 3 filed a joint written statement. While resisting the suit, they denied the ownership and possession of the plaintiff. It was averred that the defendant No.3 was never in possession of the land in dispute and revenue entries in this regard in his favour are wrong. Defendants 1 and 2 have been coming in possession of the land in dispute as tenants and have become the owners thereof under the possession of H.P. Tenancy and Land Reforms Act, 1972. Preliminary objections as to jurisdiction of civil court, estoppel and maintainability of the suit were also raised. 5. The learned trial court vide its judgment and decree dated 17 5.1985 came to the conclusion that the plaintiff was the owner of the land in dispute. He was, however, found to be not in possession thereof. Preliminary objections as to jurisdiction of civil court, estoppel and maintainability of the suit were also raised. 5. The learned trial court vide its judgment and decree dated 17 5.1985 came to the conclusion that the plaintiff was the owner of the land in dispute. He was, however, found to be not in possession thereof. Defendants 1 and 2 well held to be in possession of the land in dispute, though they were held to be not the tenants thereof. The objections as to jurisdiction of the civil court and maintainability of the suit as well as estoppel were negatived by the learned trial court. Resultantly, a decree for possession was passed in favour of the plaintiff. 6. The matter was carried in appeal before the learned Additional District Judge by the defendants 1 and 2. The learned Additions district Judge reversed the findings of the learned trial court by allowing the appeal. It was held that the plaintiff was not entitled to possession of the land in dispute. However, no specific finding was recorded by the learned Additional District Judge as to in what capacity the defendants 1 and 2 were in possession of the land in dispute. The plaintiff was non suited primarily on the ground that the case set up by him during evidence was different from the one made out in the plaint. 7. The plaintiff has now approached this court by way of the present regular second appeal assailing the findings of the learned Additional District Judge. 8. The plaintiff, as per the pleadings in the plaint, has claimed himself to be the owner and in possession of the land in dispute. It is not pleaded as to how he became the owner thereof. 9. It is well settled principles of pleadings that evidence is not to be pleaded. Once the plaintiff asserts title to the land in dispute, which stands denied by the defendants, the plaintiff can show by producing necessary evidence as to his title deluding the manner he derived title thereto. The learned District Judge has, therefore, erred in non-suiting the plain tiff primarily on the ground that the facts proved in evidence were different or not pleaded in the plaint. 10. There is no denying that the land in dispute came to be allotted to the plaintiff during the consolidation proceedings in lieu of some other land owned by him. The learned District Judge has, therefore, erred in non-suiting the plain tiff primarily on the ground that the facts proved in evidence were different or not pleaded in the plaint. 10. There is no denying that the land in dispute came to be allotted to the plaintiff during the consolidation proceedings in lieu of some other land owned by him. A perusal of Misal Haqiat for the year 1970-71(Ex.Pl) prepared after consolidation shows that the previous Khasra Number of the land in dispute was 493. This Khasra No.493 prior to consolidation, as per Ex.P.5, the jamabandi for the year 1962-63 was owned by Sarvshri Tilak Singh and others and the same is recorded as in possession of Kura, father of defendants 1 and 2, as non-occupancy tenant. The plaintiff was not the owner of this land comprising of Khasra No. 493, prior to consolidation. As stated above, it came to be allotted to him only during the consolidation proceedings as Khasra No. 1649-min. 11. Even after the allotment of the land in dispute in favour of the plaintiff, the same came to be recorded firstly as in possession of Chet Ram, defendant No.3, till Kharif 1972 and thereafter since Rabi 1973 as in possession of Kura, the father of defendants 1 and 3. There is nothing on the record to suggest that the said Kura was in possession of the land as tenant under the plaintiff in lieu of which the land in dispute has been allotted to the plaintiff during consolidation. 12. It is well settled that as a result of the consolidation proceedings if the land under the tenancy of a tenant is allotted to another landowner, then the tenant is to follow his landlord and not the land. Kura, therefore, was to follow his landlords, namely, Sarvshri Tilak Singh and others, who were the owners of the land in dispute prior to consolidation. He could not have become the tenant under the plaintiff consequent upon the land in dispute the having been allotted to him during the consolidation proceedings. 13. The two courts below have concurrently found the defendants 1 and 2 to be in possession of the land in dispute. Their such possession is unauthorized. The plaintiff being the owner thereof is, accordingly, held entitled to possession thereof. 14. 13. The two courts below have concurrently found the defendants 1 and 2 to be in possession of the land in dispute. Their such possession is unauthorized. The plaintiff being the owner thereof is, accordingly, held entitled to possession thereof. 14. .Be it stated that it is not the case of the defendants 1 and 2 that they are in adverse possession of the land in dispute for the last more than twelve years and have acquired title thereto by afflux of time. 15. Consequently, the present appeal is allowed. The judgment and decree dated 16.9.1988 of the learned Additional District Judge are set aside and that of the trial court dated 17.5.1985 are restored. No orders as to costs. -