LAWS(P&H)-2010-5-419

RAJ KUMAR AND ORS Vs. ROHTASH AND ORS

Decided On May 14, 2010
Raj Kumar And Ors Appellant
V/S
ROHTASH And ORS Respondents

JUDGEMENT

(1.) The appellants are the legal representatives of plaintiff Sheo Raj Singh, who have filed the present appeal challenging the judgment and decree of learned District Judge, Bhiwani dated 6.2.2008 by which the judgment and decree of learned Civil Judge (Sr. Divn.) Bhiwani dated 23.11.2004 in favour of the plaintiff has been reversed.

(2.) The pleaded case of the plaintiff Sheo Raj Singh is that he was owner in possession of land falling in Khewat No. 16716 Min Khatoni No. 38/1, Khasra Nos. 272//19(8-0) 20/1(1-6) total measuring 9 kanals 6 marlas as per jamabandi for the year 1977-78 but the entry in the column of cultivation appearing in the name of Ved Parkash s/o Jagan as Gair Marusi is illegal, null and void and is liable to be corrected and further the defendants be restrained from interfering in their peaceful possession over the property in dispute. It is alleged that land falling in Khasra No. 272/19, 20, 21, 22, 282/1,2, 10/1 and 283/4/2 and 5 total measuring 64 kanals 13 marlas was jointly owned by him and his brothers which was cultivated by Ved Parkash son of Jagan (predecessor-in-interest of the defendants) as a Gair Marusi tenant. After the death of Ved Parkash his tenancy rights devolved upon his widow Indrawati and Rohtash. The plaintiff filed a petition in the year 1982 in the Court of Assistant Collector, Ist Grade (ACIG) Bhwani for their ejectment whereas the defendants much less the successor-in-interest of Ved Parkash filed an application before the same Authority claiming occupancy rights. In those proceedings, Inder Singh used to appear on behalf of Indrawati as her General Attorney who entered into a compromise with the plaintiff after receiving a sum of Rs. 3000/- on behalf of Indrawati and handed over the possession of land in question to them. After the compromise, Inder Singh withdrew the petition for occupancy rights and the plaintiff withdrew the petition for ejectment. Later on, in a family settlement, which took place in the family of the plaintiff, he got the land in question. A mutation was also sanctioned in his favour. It is alleged that concerned patwari assured at that time that entries in the khasra girdawari would also be corrected but it continued in the name of deceased Ved Parkash which led to the filing of the present suit.

(3.) The suit was contested by defendants No. 1 and 2, who filed a joint written statement whereas defendants No. 3 to 7, who happened to be the daughters of Ved Parkash adopted written statement of defendants No. 1 and 2. It was alleged that they are still in possession of the land in dispute against the payment of nominal rent. The alleged compromise was never acted upon and possession was not delivered to the plaintiff. Defendants No. 2 to 7 were minors at mat time and no guardian was appointed in those proceedings to defend mem in terms of Order 32 Rule 3 of the Code of Civil Procedure, 1908 (for short 'CPC'). On the pleadings of the parties, the following issues were framed by the trial Court: