MAM RAJ Vs. RAM CHANDER

JUDGEMENT

(1.) This is a second appeal against the judgment of Shri 0. P. Singia, Additional District Judge, Delhi, setting aside the judgment and decree of the trial court dated 29th November, 1971, and remanding the case to the trial court for decision on merits.

(2.) The plaintiffs filed asuit No. 381/70 in a civil Court for declaration to the effect that they were the bhoomidars to the exclusion of the defendants with respect to the land situated in villages Maujpur Babarpur and Karkardooma, Illaqa Shahdra, Union Territory of Delhi, as per khasra numbers mentioned in the plaint. The plaintiffs-respondents claimed to be in possession of the land and sought a permanent injunction restraining the defendants from interfering with the lawful possessi of the plaintiffs. The claim of the plaintiffs was based on the ground that their father, Chet Ram, son of Kalu, had been declared bhoomidar of the land in dispute. It was further pleaded by the plaintiffs-respondents that their father had died on 3rd June, 1969 leaving behind the parties to the suit as his heirs. The plaintiffs' case was that the deceased had separated defendant No. 1, appellant i.e. Mam Raj who is the eldest son from his previous wifre during his life time after gifting a portion in his favour and by registered will Chet Ram left his entire estate (which is the subject-matter of this suit) to the plaintiffs excluding the defepdants. It was further pleaded by the plaintiffs that the will was not taken into account by the Asstt. Collector during mutation proceedings and was admitted by the Additional Collector off appeal but on second appeal the Financial Commissioner reversed the orders of the Additional Collector on the ground that no proper application under Order 41 Rule27 Civil Procedure Code .had. beenfiled,and.therefore, the Additional Collector couldnot take into acco unt the said will and as such accepted the appeal-of the appellants. The suit had been filed because of the orders of the Financial Commissioner were against the plaintiffs. The plaintiffs also averred in the plaint in paragraph 4 that they were cultivating .the land in dispute as non-occupancy tenants under Chet Ram deceased and other bhomidars and even now they are inpossession of the land in dispute. The plaintiffs accordingly sought permanent injunction restraining the defendant (appellant) from interfering with the lawful possession of the plaintiffs. Prayer was also made for possession of the land in the alternative if the plaintiffs were evicted from the land in dispute during the' pendency of the suit.

(3.) The defendant-appellant, Mam Raj, pleaded that civil Courts had no jurisdiction to entertain the suit and this claim was based on the authority of the Supreme Court in Hatti v. Sunder Singh. The trial court accordingly framed a preliminary issue :