DULI CHAND Vs. OM PARKASH

JUDGEMENT

(1.) APPEAL in this case was filed by Duli Chand, plaintiff, in the trial Court. Duli Chand died during the pendency of the appeal, hence, this appeal is being prosecuted by his L.Rs.

(2.) DULI Chand, deceased, filed the present appeal and it has been directed against the judgment and decree dated 7.1.1980 passed by the Court of the Addl. Distt. Judge, Gurgaon, who partly allowed the appeal of the defendant and modified the judgment and decree of the trial Court dated 31.3.1979 vide which the trial Court had declared that the plaintiff is in lawful possession of the suit land. Resultantly, a decree for permanent injunction was granted in favour of the plaintiff and against the defendant Om Parkash restraining the defendant from interfering in the possession of the plaintiff in the suit land. It was held by the trial Court that the status of Duli Chand remains that of a tenant throughout irrespective of the fact that at one point of time, the allotment of the land was cancelled but with the re-allotment of the land in favour of Om Parkash and Kanwar Bhan, who was the defendant in the trial Court, the status of the plaintiff stood restored since his possession remained lawful, therefore, he is entitled to the decree for permanent injunction. It may also be mentioned that the plaintiff during the pendency of the suit gave up Kanwar Bhan, who was defendant No. 2, on 12.8.1977. Resultantly, the suit only proceeded against Om Parkash, who filed the appeal before the first appellate Court.

(3.) THE admitted facts of the case are that the suit land measures 31 kanals and 6 marlas and it is an evacuee property. In the year 1950, this land was allotted to Om Parkash, defendant and his two brothers; namely, Kanwar Bhan and Popat Ram. Possession of the land was also delivered to them. Duli Chand, plaintiff was taken as a tenant under the land by the allottees Om Parkash and others vide order dated 27.5.1966, the allotment of the said land in favour of Om Parkash and his two brothers was cancelled and this order was given effect in the revenue record vide DDR of the Patwari entered on 6.6.1966, Ex. D-12. Plaintiff was, however, not dispossessed physically from the land even though it was resumed by the Custodian. The land was, however, re-allotted to Om Parkash and his deceased brother Kanwar Bhan vide allotment letter dated 27.2.1970, Ex. D-2. Sanad, Ex. D-1, was issued in their favour. The result was that Popat Ram, who was one of the co-allottees under the previous allotment of 1950 ceased to be an allottee under the new allotment dated 22.2.1970. Duli Chand, plaintiff, continued in possession of the land. Hence, Om Parkash continued making efforts to take the actual physical possession of the land. His prayer to this effect was initially refused vide order dated 10/.6.1975, Ex. D-3, by Tehsildar, Sales-cum-Managing Officer, Gurgaon. Om Parkash filed an appeal before the Settlement Officer, Ambala. His appeal was accepted vide order dated 21.1.1976, Ex. D-4, and the case was remanded to the Tehsildar, Sales, Gurgaon, for re-consideration. Thereafter, the Tehsildar, Sales, Gurgaon, passed the order dated 28.2.1977, Ex. D-5, whereby it was directed that the possession of the land be delivered to Om Parkash and Kanwar Bhan. In pursuance of that order, Tehsildar, Sales, Gurgaon, directed vide order dated 7.3.1977, Ex. D-10, that the Girdawar should deliver possession of the land to Om Parkash. Consequently, the proceedings for delivery of the possession were recorded at the spot on 16.6.1977 by Shri Yad Ram, then Girdawar, in the presence of Ashok Kumar, Revenue Patwari and others, regarding delivery of physical possession of the land to Om Parkash. These proceedings were recorded in the daily diary vide entry, Ex. D-7, in the absence of the plaintiff.