SUBHASH CHAND Vs. PRITHI GIR AND OTHERS

JUDGEMENT

(1.) This appeal is directed by defendant appellant against the judgment and decree dated 4.8.2007 passed by Shri Hari Paran Singh, District Judge, Sirsa vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 28.5.2003 passed by Sh. Sushil Kumar Garg, Civil Judge (Senior Division), Sirsa was dismissed.

(2.) The facts of the present case in brief are that plaintiffs and legal heirs of Ram Murti (since deceased) are not bound by the order dated 5.8.1997 passed by Sub Divisional Officer (Civil) Sirsa as Collector Sirsa in case titled ''Subhash Chand and Others v. Krishan Kumar'', case No.9-Redemption of 1996 decided on 5.8.1997 and that the defendants are not entitled to recover possession of the land measuring 24 Kanals comprised in Sq. No. 155 Killa No. 16 (8-0), 17(8-0), 18(8-0), situated in the area of village Jodhkan, Tehsil and District Sirsa, in execution of the impugned order dated 5.8.1997. The plaintiffs have also sought a decree for permanent injunction restraining the defendants from recovering the possession of the suit land from them and the legal heirs of deceased Ram Murti.

(3.) It has been further pleaded by the plaintiffs that they and legal heirs of deceased Ram Murti are in joint cultivating possession of the suit land and the same is a part of joint khewat, which has an area of about 150 acres; Shri Chanchal Gir one of the co-owners had mortgaged some land out of this joint khewat with one Aasa Ram of Hisar. Sh. Ram Chand Gir, Arjan Gir, Birnal Gir, Anna Gir and Rugha Gir were the sons of Chanchal Gir and they had inherited the land of Chanchal Gir with their sisters with the result that they were recorded to be mortgagors of the suit land; that above said Ram Chand Gir, ''Arjan Gir, Birbal, Atma Gir had started interfering into the possession of the plaintiffs and that of Ram Murti (since deceased) and the plaintiffs were forced to file a civil suit No.937 of 1979 against Ram Chand Gir etc. for injunction and in that suit, the plaintiffs had claimed their possession as co-sharers; the aforesaid suit No.937 of 1979 was decreed by the Court of Shri S.N. Chandha, Sub Judge, Ist Class, Sirsa on 5.11.1981 and the defendants of that suit were restrained from interfering into the possession of the plaintiffs over the suit land; an appeal was also preferred by the defendants against the judgment and decree dated 5.11.1981, which was partly accepted by Shri R.D. Aneja, the then learned Addl. District Judge, Sirsa on 22.11.1983 but the decree dated 5.11.1981 qua the suit land was maintained; that defendants No.1 and 2 are legal heirs of deceased Birbal Gir and defendants No.4 to 6 are legal heirs of deceased Ram Chand Gir, who were defendants in the earlier suit; that defendants No.1 to 3 and late Shri Ram Chand Gir, predecessor of defendants No.4 to 6 filed a petition for redemption of 55 Kanals 4 marlas land, which includes the suit land on payment of Rs.6,000/- in the Court of S.D.O. (Civil) Sirsa; that petition was filed against Krishan Kumar etc., the mortgagees; that the aforesaid petition was allowed by S.D.O. (Civil), Sirsa on 5.8.1997 and on the basis of said order, the defendants have filed an execution petition for delivery of the possession of the suit land; that order dated 5.8.1997 passed by S.D.O. (Civil), Sirsa is not binding on the rights of the plaintiffs and legal heirs of deceased Ram Murti because they were not parties to the redemption petition and they are independently in possession of the suit land as co-sharers; that the plaintiffs have never claimed their possession under the mortgagee that the defendants/mortgagors have already been restrained from interfering in the possession of the plaintiffs in civil suit No.937 of 1979 and the decree passed in civil suit No.937 of 1979 is still operative and binding upon the parties; that the defendants are bent upon to dispossess the plaintiffs from the suit land in the guise of the impugned order dated 5.8.1997 and hence the suit.