IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CMPMO No.103 of 2007 Judgment reserved on:14.3.2008. Date of decision: 27.3.2008. Bhola Nath ....Petitioner -Versus- Beant Singh and others ….Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. Whether approved for reporting? For the Petitioner: Mr.Ajay Sharma, Advocate. For Respondents: Mr.Vijay Verma, vice counsel for the respondents. Deepak Gupta,J. The petitioner (hereinafter referred to as the plaintiff) is aggrieved by the order of the learned District Judge, Una dated 30.4.2007 passed in CMA No.11 of 2005 whereby he has allowed the appeal of the respondents (hereinafter referred to as the defendants) and set-aside the interim stay order granted by the learned trial Court in CMA No.120/VI/2004 decided on 14.1.2005. The facts briefly stated are that the plaintiff filed a suit for restraining the defendants from taking forcible possession or in any manner raising construction over the land measuring 0-19-78 hectares comprised in khewat No.261 khatauni No.604 and khasra No.1737/1393, 1394 and 1395 situated in village Diara, Tehsil Amb, District Una, H.P. (hereinafter referred to as the suit land). 2 According to the plaintiff the suit land was owned by one Faquir Chand son of Punnu and was mortgaged without possession with the predecessor-in-interest of the defendants. Thereafter, as per the plaintiff Faquir Chand was inducted as tenant on payment of rent by mortgagee. Faquir Chand allegedly entered into an agreement dated 25.2.2004 agreeing to sell the suit land to the plaintiff for a consideration of Rs.40,000/- and Rs.10,000/- was paid on the said date and the plaintiff was put in possession of the suit land. It was alleged that the defendants are threatening to interfere in the suit land and trying to take forcible possession and therefore the suit. The defendants contested the suit. It was admitted that the land was initially owned by Faquir Chand. According to the defendants the same was in cultivable possession of Shiv Ditta who never inducted Faquir Chand as tenant. It was further alleged that the mortgage was never redeemed and no money was paid to Faquir Chand. The learned trial Court came to the conclusion that Faquir Chand is shown to be the mortgagor in possession as non-occupancy tenant in the revenue record and presumption of truth is attached to the revenue record. Copy of the agreement to sell had been placed on record and the learned trial Court further came to the conclusion that since the defendants are only successor of the mortgagees, therefore, they have no right to interfere in the possession of the plaintiff and restrained the defendants from taking forcible possession or in any manner interfering in the suit land. 3 The learned lower appellate Court has set-aside this order mainly on the ground that there is nothing to show that Faquir Chand ever got the mortgaged land redeemed. He, therefore, set-aside the restraint order and dismissed the application under Order 39 Rules 1&2. Hence, the present petition. I have heard learned counsel for the parties. A perusal of the documents placed on record shows that the plaintiff has taken inconsistent pleas. On the one hand it is urged that Faquir Chand had mortgaged the land which he had redeemed and on the other it is urged that Faquir Chand had been inducted as a tenant on the suit land. It is difficult to believe that a person who mortgages the land with possession would be inducted as a tenant. Why would he part with the possession? Otherwise a mortgage without possession could easily have been created. I also find that the plaintiff has taken specific plea that the mortgage has been redeemed. The learned trial Court relied upon the revenue record to decide the application in favour of the plaintiff. However, the revenue record is contrary to what the plaintiff submits. The revenue record contradicts the stand of the plaintiff that the mortgage had been redeemed. Therefore, no reliance can be placed on such revenue record. In view of the above discussion, I am of the view that the plaintiff has failed to show that he is in possession of the suit land. However, this is only a prima facie conclusion which has no bearing on the merits of the main suit which must be decided on the basis of the evidence led before the learned Court below. The fact however 4 remains that according to the plaintiff he has purchased the rights of Faquir Chand. The rights and interests of both the parties have to be protected. Therefore, though I am of the prima facie view that the plaintiff is not in possession of the suit land, his right must be protected. The defendants are, therefore, restrained from in any manner alienating or encumbering the suit land. Any development of the suit land or construction raised thereupon shall be at the risk and costs of the defendants who shall not claim any equity in case the suit is decided in favour of the plaintiff. In view of the above discussion, the petition is partly allowed and the defendants are restrained from in any manner alienating or encumbering the suit land. Any development of the suit land or construction raised thereupon shall be at the risk and costs of the defendants who shall not claim any equity in case the suit is decided in favour of the plaintiff. The petition is disposed of in the aforesaid terms. No order as to costs. March 27, 2008. ( Deepak Gupta ), PV Judge.