MUKHTIAR SINGH Vs. PHOOL SINGH

JUDGEMENT

(1.) This is defendant's second appeal challenging the judgment and decrees of the courts below whereby suit of the plaintiff-respondent for declaration has been decreed and it has been held that the plaintiff- respondent is entitled to recover the possession on the basis of his title and is also entitled to get correction of Tatima of Khasra No.806//14 min -east (0-18) situated at village Beer, District Hissar, as per the decree. Brief facts of the case are that the plaintiff- respondent and his brother Surja were the owners of Khasra No.806//13/2 (1-3), 14 (8-18), 15 (8-0), 16(8-0), 17(8-0), 24(8-0), 25(8-0) total measuring 50 kanal 1 marla situated at Beer, Hissar. Defendant/appellants had purchased 31 kanals 18 marlas from Surja vide sale deed No.6911 dated 20.12.1990 and mutation No.64 dated 9.5.1991 was sanctioned in their favour on the basis of the said sale deed. As per the decree dated 14.5.1991 passed in Civil Suit No.557-C titled as "Phool Singh vs. Surja" on the basis of family settlement, plaintiff became owner in possession of remaining land measuring 18 kanal 3 marla, i.e., suit land in question. Mutation No.53 dated 24.11.1990 was also sanctioned in favour of the plaintiff. According to the plaintiff-respondent at the time of sanction of above mutation, Tatima of khasra No.806//14 was cared out illegally and land measuring 0 kanal 18 marla was separated from kila No.806//14 and plaintiff was put in possession over 0 kanal 18 marla on 806//14 min east which was adjacent along with the khasra No.806//14 and is being possessed and cultivated by the plaintiff at the spot. In revenue record, this tatima in khasra No.806//14/2 has been shown in the north of khasra No.806//14/1, which is wrong and illegal. This was done by the defendants in collusion with revenue officials at the back of the plaintiff and the same is liable to be corrected in the revenue record. Tatima No.806//14/2 (0-18) is situated at a distance of main agricultural land, i.e., khasra No.806//15 and 16 and as per the law, tatiama should have been careved out adjacent to the remaining land of the plaintiff. The defendant by taking all advantage of above mentioned illegal tatima forcibly took possession in the month of October 2005 and then refused to get the tatima correct.

(2.) Written statement was filed by the defendants raising various preliminary objections including that the suit was not maintainable. On merits, it was stated that the decree dated 14.5.1991 was passed in collusion between the plaintiff and his brother Surja and no family settlement, as alleged by the plaintiff, was ever produced. Fact of execution and registration of the sale deed dated 20.12.1990 and mutation No.64 dated 9.5.1991 in respect of 31 kanal 18 marla by the defendants from Surja was admitted. It was further stated that tatima of khasra No.806//14 was correctly and legally carried out towards the north of Kila No.14 which is adjacent to kila No.806/7. The said tatima was carved out at the time of sanction of mutation No.64 dated 9.5.1991 in the presence of the plaintiff and, therefore, the same was not liable to be corrected. Dismissal of the suit was prayed for. On the basis of the pleadings, the following issues were framed by the trial court:-

(3.) From the perusal of the pleadings as mentioned in the impugned judgment, it is made out that no pleadings with regard to questions No.1 & 2 as raised before this court, were made by the appellants in their written statement. Even no such argument was raised before the courts below on the basis of which the substantial questions of law No.1 & 2 could be raised before this Court. The only point which was raised before the trial court was with regard to the maintainability of the suit on the ground that plaintiff wanted to take benefit of the facts which were known to him earlier also and he had not come to the court with clean hands. Thus, in view of the judgment of the Hon'ble Supreme Court in Bachhaj Nahar v. Nilima Mandal & Anr., JT 2008(13) SC 255, questions No.1 & 2 as raised by learned counsel for the appellants do not arise in this appeal. The burden to prove the fact that tatima of khasra No.806//14 (0-18) was wrongly carved out at the spot by the revenue authorities at the time of sanction of mutation No.64 dated 9.5.1991 was upon the plaintiff- respondent. To prove the aforesaid fact, plaintiff- respondent in his affidavit submitted that land measuring 0 kanal 18 marla was separated from kila No.806/14 at the time of attestation of mutation No.64 dated 9.5.1991 and at that time, the plaintiff was in possession of 0 kanal 18 marla towards the east adjacent to khasra No.806//15 and while sanctioning mutation No.53 dated 24.11.1990, a tatima was also carved out in respect of khasra No.806//13. Later on it came to the knowledge of the plaintiff that khasra No.806//14/2 (0-18) in fact on paper situated towards north and non adjacent to the other land of the plaintiff and in fact the revenue authorities at the time of sanctioning of the mutation No.64 dated 9.5.1991 did not try to ascertain the fact that the remaining land of the plaintiff was situated away from khasra No.806//14 (0-18) and in this way by carving out the aforesaid tatima while sanctioning mutation No.64 dated 9.5.1991, holding of the plaintiff-respondent was fragmented. In support of his plaintiff- respondent also produced Ram Dhari Patwari asPW2 who supported his case. On the other hand, the only objection taken by the appellants was that the plaintiff was in the knowledge of the carving out of tatima in question and that the alleged tatima was carved only to two portions of land of plaintiff and since the plaintiff had sold his share in khasra No.13/2 (1-3) to one Kamal Singh by way of sale deed Ex.D13, the alleged tatima is of no use to him and he wants to get his land joined with his remaining land which could not be allowed.