Arun Kumar Goel, J.—The appellant has filed this appeal against the judgment and decree passed by Shri Jasbir S. Dhaliwal, District and Sessions Judge, Sirmaur District at Nahan dated 26-9-1991. By means-of impugned judgment and decree, while allowing the appeal, first appellate Court has upset the judgment and decree of the trial Court passed in Civil Suit No. 158/1 of 1989/88, dated 7-12-1990, whereby the suit of the Respondent (hereinafter referred to as the Plaintiff’) had been dismissed As a result of the allowing of the appeal by the District Judge, Sirmaur the suit of the plaintiff claiming decree and possession of laud measuring 7 bigha 2 biswas has been decreed.

2. Suit was filed by the plaintiff against the appellant (hereinafter referred to as the Defendant; for possession on the basis of title and that f the defendant is a trespasser over the land measuring 7 bighas 2 biswas (hereinafter referred to as the suit land’ and since the defendant had encroached upon the suit land without any right, as such, possession was claimed, The suit was contested and resisted by the defendant, who pleaded that he is a non-occupancy tenant on payment of 1/4th of Galla-Batai in respect of land measuring 5 bigha 12 biswas comprised ia khasra No. 431/322 rain under the plaintiff. This land, according to the defendant, was in the nature or Jhari Jhund and he made the same cultivable after spending huge amount

3. Since the relations between the parties were good, so the defendant did not bother regarding revenue entries According to the defendant, it was further held out by the plaintiff that there is no need of getting the revenue entries corrected, although it had come in evidence ; as also it was the case pleaded by the defendant that he applied for correction of revenue entries. Plaintiff was holding good position as Joint Secretary, Transport and Tourism, Government of Himachal Pradesh and also remained as Collector and held other high positions, as such, the reveoue officers did not carry out the necessary correction. It was farther the case of the defendant that when he had applied for correction of revenue entries on 9-7-1979, plaintiff executed a receipt/agreement whereby he agreed to sell 6 bigha 12 bighas of land for a sum of Rs 5,200. He also received Rs. 500 from the son of the defendant namely Mangat Ram, who was also the attorney of the defendant. However, when on 15-12-1979, the son of the defendant went to pay the balance amount of sale consideration of Rs. 5,000, plaintiff pretended that since he has not paid Mamla (land revenue) to the Government of H.P., as such, he his unable to execute the sale deed and get it registered in favour of defendant as well as his son Mangat Ram, But the plaintiff assured that the dispute would be settled soon and he would execute the necessary safe deed as also would receive the balance amount. Defendant being a simplton and illiterate, accepted the word of the plaintiff and continued paying the Galla Batai to the latter. In these circumstances, the dismissal of suit was prayed for.

4. In the replication filed by the plaintiff to the written statement of the defendant, he admitted the receipt of Rs. 500 in terms of the receipt dated 9-7-1979, but pleaded that there was failure on the part of the defendant to get the needful done by payment of balance amount. It was further pleaded that the defendant showed his inability to get the sale deed registered in his favour, as such, the latter was stated to be not entitled to take benefit of the said receipt in question and, therefore, the defendant was bound to deliver possession and according to the plaintiff. In the aforesaid circumstances, parties went to trial on the following issues :—

1. Whether the defendant is ia possession of entire suit laud ? OPP.

2. Whether the defendant is in possession of 5.12 bighas out of the suit land as tenant as alleged ? OPD.

3. Whether the suit is not maintainable ? OPD.

4. Relief. Decision of the trial