NAGTA SINGH Vs. SHIV SINGH

JUDGEMENT

(1.) This is a defendant's second appeal in a suit for possession over certain plots of land and a house in village Gorti Kanda, Patti Bharpur of the district of Tehri Garhwal. The trial court dismissed the suit but the lower appellate court decreed it, hence this second appeal.

(2.) One Lalloo was married to Smt. Rupdei. They had a son Badru. Luthi Singh, Shiv Singh, Gajadhar and Budh Singh, the plaintiffs are the sons of Badru. Smt. Bisweshwari and Smt. Sateswari defendants respondents Nos. 2 and 3 are his daughters. Of the four plaintiffs only Shiv Singh has been impleaded as the first respondent, as it appears that in the lower appellate court only Shiv Singh, the second plaintiff, had appealed from the trial court's decree, and he had not impleaded the other plaintiffs as respondents. After Lalloo's death Smt. Rupdei took Galya as a Kathaia and Nagta Singh, the defendant appellant, was born of their union.

(3.) It appears that the agricultural lands of which Lalloo was a Maurusidar were being enjoyed in two equal shares by Badru and Nagta Singh and the name of Nagta Singh was also entered in the Khatauni as a Maurusidar of the land along with Badru and there was no difficulty so long as Smt. Rupdei was alive. According to the statement of the plaintiff respondent Shiv Singh, who appeared as P. W. 1, that was recorded on 15th July, 1969, Smt. Rupdei died some 15 or 16 years ago. That would put the date of her death somewhere in the year 1953 or 1954. Nagta Singh, the present defendant appellant had filed suit No. 50 of 1961 on 30th October, 1961 in the Munsif s court for partition and separate possession over a half share of the property of Lallo against Badru. That suit was dismissed on 30th March, 1963. Badru's defence in that case was that Nagta Singh was an illegitimate son of his mother; and that whatever 20 or 25 nalis of land was in Nagta's possession, was the share of the mother and not the share of Nagta as the heir of Lallo. The court of the Munsif Kirtinagar, which tried the case held that Nagta Singh was not the descendant of the original Maurusidar Lalloo, that the entry of Nagta's name in the revenue records was either false or fraudulent and that he was accordingly not entitled to the relief of partition and dismissed the suit, vide judgment dated 30th March, 1963, Ext. 3. The first appeal therefrom was dismissed by the court of the Civil Judge Tehri Garhwal, vide decree dated 26th November, 1963, Ext. 4. It was alleged that a second appeal was filed in this Court, but it is undisputed that that appeal has been dismissed and the decree dismissing the partition suit filed by Nagta Singh in respect of the land in suit has become final. Badru died during the pendency of that litigation. The revenue records were corrected by expunging the name of Nagta Singh. Ext. 5 shows that the Assistant Land Records Officer passed an order on 20th March, 1964 expunging the name of Nagta Singh in accordance with the decree dated 25th November, 1963 of the court of the Civil Judge, Tehri Garhwal in that suit. There are three endorsements in the Khatauni extract Ext. I. The first dated 2nd April, 1965 shows, that on certain specified plots of land the name of Nagta Singh was ordered to be entered in class 5 (varg 5) by the Assistant Record Officer. The second endorsement dated 9th June, 1965 shows that the name of Nagta Singh was ordered to be expunged from the main tenant's column under an order dated 20th March, 1964 of the Assistant Records Officer. The third endorsement dated 30th May, 1967 shows that the name of Nagta Singh was expunged under an order dated 24th March, 1965 in Appeal No. 45 of 1963-64 even as an under-tenant of class 5 of the Maurusidar Badru. However, Nagta Singh appears to have continued in possession and the suit giving rise to the present second appeal was filed in the year 1968; Badru having died in the meanwhile on 14th February, 1967.