SH. PRITAM SINGH Vs. SH. DHARE

JUDGEMENT

(1.) THIS appeal has impugned the judgment and decree dated 23.10.04 which has endorsed the finding of the trial judge dated 01.2.89 whereby the suit filed by the plaintiff Sh. Pritam Singh seeking declaration to the effect that he is the absolute owner of 10 biswas of land (out of Qaime No. 253) and co-owner to the extent of half share (in Qaime No. 252/1 as also of Qaime no. 242) in Village Ujwa, Delhi had been dismissed. The relief of permanent injunction restraining the defendants from interfering in his possession had also been dismissed.

(2.) THE case of the plaintiff is that his father, Sh. Daulat Ram and defendant nos. 1 and 2 were recorded owners of Khasra No. 800/103 measuring 2 Bhigas and 6 Biswas in Village Ujwa. The share of Daulat Ram was one half and that of defendant nos. 1 and 2 and Sh. Om Prakash was the other half. After the death of Daulat Ram, the plaintiff being his sole legal heir stood succeeded to the estate of his father. In 1972, Consolidation Proceedings under the East Punjab Holdings (Consolidation and Prevention Fragmentation Act, 1948 (hereinafter referred to as the Act) as extended to Delhi, started in Village Ujwa, Delhi. By amicable mutual arrangement, 10 biswas of land out of Khasra no. 800/103, adjoining the house of Daulat Ram fell to the share of the plaintiff; in lieu thereof one pucca residential house within the Lal Dora of Village Ujwa was given to the defendant nos. 1 & 2 and Sh. Om Prakash. Sh. Daulat Ram, the father of the plaintiff, had constructed a pucca house in the said 10 biswas of land. The remaining land in Khasra No. 800/103 measuring 1 bigha and 16 biswas remained in the joint possession and enjoyment of the ownership of the parties. It was contended that in lieu of the pre-consolidation proceedings, plaintiff was allotted 7 biswas and defendants were allotted 6 biswas in Qaime no. 252/1 was a part of Khasra no. 800/103. It was contended that in an earlier suit i.e. suit no. 20 (C)/1982, Sh. Pritam Singh Vs. Sh. Dhare & Ors, defendant nos. 1 and 2 along with defendant no. 3, Smt. Dharam Kaur, had in their written statement admitted that Khasra no. 252/1 is a Qaime within a part of Village Ujwa. This Qaime land cannot be the subject matter of partition. The contention of the plaintiff is that he has also filed an application under Section 36 of the said Act before the Settlement Officer praying that the scheme of consolidation confirmed by him be varied and corrected and a subsequent scheme be prepared. The Settlement Officer on 11.04.1985 had rejected this application. Plaintiff had filed revision before the Financial Commissioner which was also dismissed on 31.03.86. The said orders are wrong and illegal. The defendants, on 2.06.1984, had tried to interfere with the possession of the plaintiff; present suit for declaration and injunction had accordingly been filed.

(3.) THE trial judge had framed two preliminary issues, they reads as follows:-