RATTAN SINGH Vs. BANTA SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal has been filed by Rattan Singh plaintiff. His suit was decreed be the trial Court but on appeal by the defendants, the same was dismissed.

(2.) FACTS in brief : Dalel Singh, father of Rattan Singh plaintiff, left land, plots and houses in Pakistan and in lieu thereof, he was allotted land in India after partition of the country. Plot No. 10 in village Fatehpur Khurd was allotted to him. The total area of this plot was 2 Kanals-16 Marlas-3 Sarsahis. Out of it, 1 Kanal 10 Marlas was allotted to Dalel Singh in February, 1956. Exhibit 'p 11' is the Sanad issued in his favour. On April 21, 1953, 4 Marks 3 Sarsahis out of the said plot was allotted vide Exhibit 'p-8' but no Sanad was issued. Subsequently, 1 Kanal 2 Marlas of the said plot was allotted vide Exhibit 'p-9' and proprietary rights were conferred vide Exhibit 'p-10'. Banta Singh and Darbara Singh defendants filed a suit claiming a passage from the disputed plot which was with the plaintiff Rattan Singh to their houses and plots. The said suit ended in a compromise Exhibit 'p-4'. On payment of Rs. 257/- a passage 6 feet 9 inches wide was allowed to Banta Singh and Darbara Singh. This was in February, 1968 Thereafter Rattan Singh plaintiff constructed boundary wall, mangers, gate, hand-pump and rooms towards his side of the plot. It may be noticed here that some excess area of the plot was found with him and he was allowed to purchase the same on payment of Rs. 325/-; and the possession was delivered to him after recording necessary report. Banta Singh and Darbara Singh defendants, after obtaining passage under the compromise as aforesaid, still raised claim to the remaining passage whereas the plaintiff wanted confirmation of the sale of the plot (remaining area), as aforesaid, in his favour. On February 23, 1976, the Tehsildar-cum-Managing Officer confirmed the sale in favour of Rattan Singh. He also ordered refund of some amount which had earlier been deposited by Banta Singh and Darbara Singh towards the excess area claimed by them as passage Both Banta Singh and Darbara Singh approached the Assistant Settlement Commissioner by way of appeal, which was ultimately decided by the Sales Commissioner on April 24, 1978, vide Exhibit 'd 1'. In this order the Sales Commissioner allotted 4 Karams wide passage to Banta Singh and Darbara Singh. Rattan Singh, present plaintiff, approached the Chief Commissioner in revision, which was dismissed on February 19, 1980 After the Sales Commissioner had passed the order, the Tehsildar-cum-Managing Officer issued a notice calling upon Rattan Singh plaintiff to vacate unauthorised occupation of the alleged passage which was found in excess with him on demarcation. This led plaintiff Rattan Singh to file the present suit for permanent injunction restraining Banta Singh and Darbara Singh, the private respondents, as well as the Tehsildar (Revenue)-cum-Tehsildar (Sales) and the State of Punjab through the Deputy Commissioner (Chief Sales Commissioner) from interfering by any means in the lawful possession of the plaintiff over the Eastern side of plot No. 10, which was described in the site plain as ABLKJ and also not to demolish any wall, gate, manger, hand pump, Khunda, Nali etc. constructed by the plaintiff. Although the plaintiff in the suit had not mentioned about the order dated April 24, 1978 of the Sales Commissioner and the order dated February 19, 1980 of the Chief Sales Com-missioner, the private defendants aforesaid while contesting the suit referred to the order dated April 24,1978. On different grounds the suit was contested. No written statement was filed by the official respondents The trial Court proceeded on the following issue :- " (1) Whether the plaintiff is entitled to the injunction prayed for? OPP (2) Whether the jurisdiction of this Court is barred as alleged? OPD (3) Whether the plaintiff is estopped from suing as alleged ? OPD (4) Whether the suit is bad for non-joinder of Lal Singh, as alleged ? OPD (5) Whether the suit is maintainable in the present form ? OPD (6) Whether notice under Section 80 of the Code of Civil Procedure was served on the State ? If not to what effect ? O. P. Parties. (7) Whether site plan produced by tie plaintiff is correct? If not to what effect ? O P. Parties. (8) Whether the suit is properly valued for purposes of Court fee and jurisdiction ? O. P. D. (9) Whether Chain Singh has authority to sue on behalf of the plaintiff ? O P. P. (10) Whether the site in dispute is the ownership and in possession of the plaintiff? O PP. (11) Relief,"

(3.) WHILE decreeing the suit the trial Court concluded that the decision in the previous suit was binding on the patties whereby a compromise was effected and 6 feet 9 inches wide path was allowed to the defendants. On appeal, it was observed that the order of the Managing Officer dated February 23, (sic ). Confirming tie sale of the excess area of the plot in favour of Rattan Singh plaintiff was set aside by the Sales Commissioner vide order dated April 24, 1978 Exhibit 'dl'. The excess area being a passage recorded, could not be allotted to anybody. The Tehsildar-cum Managing Officer bad the jurisdiction to issue notice which was being challenged in the suit.