Judgement

S. SAGHIR AHMAD, J.:- The legal proceedings for land comprising khats khatauni No. 45/63, Khasra No. 348 (Area 34.9 bighas) situate in Village Chuling, Dist. Kinnaur in the State of Himachal Pradesh was initiated by the appellants defendants) before the Compensation Officer, Poon, for certain relief but when their application seems to have been contested by respondents (plaintiffs), it was withdrawn on August 24, 1971. Thereafter, the present respondents father Shri Pacam Ram, who is since dead and is represented by the respondents, came forward with a suit for recovery of a sum of Rs. 6,300/- as sale price for the aforesaid land against the present applicants on the ground that by document dated September 1, 1976 (referred to as 2nd September, 1976 at some places in the record), the land in question of which he was the owner was transferred to the appellant which the appellants had promised to pay on November 11, 1976 but they did not pay the amount and continued to remain in possession which they should have surrendered for having not paid the above stipulated amount.

2. The suit was contested by the appellants on the grounds inter alia that they were tenants under the plaintiffs, namely Padam Ram, and were already in possession. They also pleaded that the document dated September 1, 1976 was obtained by fraud and undue influence and was, in case, void being against the provisions of Himachal Pradesh Tenancy and Land Reforms Act under which they have become owners of the land.

3. A number of issues were framed in this suit, one of which namely, Issue No. 5, read as under :

"5. Whether the defendant is in possession of the suit land as tenant under the plaintiff since samvat 2005 at alleged ?"

4. The suit was dismissed by the Trial Court (Senior Sub-Judge, Kinnaur) by judgment and order dated January 15, 1981 with the findings, inter alia, that the agreement was without consideration and was hit by the provisions of Section 91 of the Himachal Pradesh Tenancy and Land Reforms Act. It also recorded a finding on Issue No. 5 that the defendants were tenants of the land in suit under the plaintiff since Samvat 2005.

5. The judgment of the Trial Court was upheld by the learned Additional District Judge, Shimla in an appeal filed by the plaintiff which was dismissed with the findings that the land in question was at no stage sold by the plaintiffs respondents to the present appellants and consequently the plaintiffs were not entitled to recover Rs. 6,300/- from the appellants as sale price as the documents in question was only an agreement for sale and not a sale deed. The lower appellate Court also specifically reversed the finding of the Trial Court on Issue No. 5 and held that the defendants had failed to prove themselves to be tenants of the disputed land under the plaintiff. Those legal proceedings terminated at that stage.

6. The plaintiff, however, initiated new proceedings by filing suit No. 91/1/1982 for possession against the present appellants on the basis of the title. Pleading inter alia that they were the owners of the land in question and the defendants, namely, the present appellants who had already been held in the earlier suit that they were not the tenants of the land in suit were not entitled to retain possession.

7. This suit was resisted by the appellants on the ground that the suit was barred by Order 11 Rule 2 of the Code of Civil Procedure and that it was barred by time as they were in possession over the land in question since samvat 2005 and had become owners of the land in suit by adverse possession.

8. The Trial Court, namely, Senior Sub-Judge, Kinnaur at Kalpa, dismissed the suit by judgment and order dated April 21, 1984 with the finding that the suit was barred by the principles of Order 13 Rule 2 and was beyond time. In appeal, decided by the Distt. Judge, Shimla, on March 31, 1986, the findings recorded by the Trial Court were reversed and the suit was decreed with the findings that it was not bar