The onus of proving exclusive possession after partition lies with the plaintiff, and findings must be based on evidence rather than conjectures and surmises.

JUDGMENT

Ajay Mohan Goel, J. - By way of this appeal, the appellants assail the judgment and decree passed by the Court of learned District Judge, Sirmaur in Civil Appeal No. 80-CA/13 of 2001 dated 16.01.2002, vide which, learned appellate Court while allowing the appeal filed by the predecessor-in-interest of the present respondents, set aside the judgment and decree passed by the Court of learned Sub Judge 1st Class, Court No. 2, Paonta Sahib in Civil Suit No. 196/1 of 1999, dated 26.05.2001, whereby learned trial Court had dismissed the suit for permanent injunction filed by the predecessor-in-interest of the present respondents.

2. Brief facts necessary for the adjudication of the present case are that predecessor-in-interest of the present respondents, namely, Telu Ram (hereinafter referred to as 'the plaintiff") filed a suit for permanent injunction on the grounds that he alongwith defendants and others were co-sharers in land comprised in Khata Khatauni No. 30/98 alongwith other lands and that the plaintiff in fact was in exclusive possession of Khasra No. 951 and 1458, measuring 1-2 bighas and 1-14 bighas, situated in Mauza Bali Koti, Tehsil Shillai, H.P. and pursuant to a partition, said Khasra numbers were allotted to him alongwith other Khasra numbers. Further, the case of the plaintiff was that defendants never remained in possession of the suit land, i.e., land comprised in Khasra No. 951, measuring 1-2 bighas and Khasra No. 1458, measuring 1-14 bighas, situated in Mauza Bali Koti, Tehsil Paonta Sahib, District Sirmaur nor were they allotted the suit land in partition. However, despite this, the defendants were forcibly trying to occupy the suit land, which was being resisted by the plaintiff. In May 1998, defendants had again tried to interfere in the suit land and if the defendants were not restrained from interfering in the same and from occupying the suit land forcibly, then the plaintiff would suffer irreparable loss. According to the plaintiff, he being in exclusive possession of the suit land pursuant to partition, had a prima facie case in his favour and on these bases, he filed the suit praying for decree of permanent injunction restraining the defendants from interfering and occupying the suit land.

3. The suit so filed was resisted by the defendants, who in their written statement specifically denied the factum of suit land being in exclusive possession of the plaintiff. As per the defendants, one Jangli Ram was in possession over the suit land and the same was being cultivated by the defendants on behalf of Jangli Ram. Jangli Ram was duly recorded in revenue records in possession of suit land and after his death, defendants were in possession of the same, who had developed the suit land and had made it cultivable and the same was thus in cultivating possession of the defendants. According to the defendants, plaintiff never remained in possession of the suit land in any capacity. Entry in revenue records in the column of possession in favour of the plaintiff was stated to be false, fictitious and contrary to factual possession at the spot by the defendants. It was further the case of the defendants that it was in fact the plaintiff, who wanted to forcibly occupy the suit land with the assistance of his family members without any right, title and interest. Thus, on these bases, the suit of the plaintiff was resisted by the defendants.

4. On the basis of pleadings of the parties, learned trial Court framed the following issues:

"1. Whether the plaintiff is in exclusive possession of Khasra No. 951 and 1458 having been given to him in partition, as alleged? OPP

2. If issue No. 1 is proved in affirmative, whether the plaintiff is entitled for the relief of injunction? OPP

3. Whether the plaintiff has no cause of action as alleged? OPP

4. Whether the suit is not maintainable as alleged? OPD

5. Whether the suit is not properly valued as alleged? OPD

6. Whether Jangli was in possession of suit land since beginning and