GURBUX SINGH Vs. HARI CHAND JAIN

JUDGEMENT

(1.) This Regular Second Appeal has been filed by unsuccessful defendants - Gurbux Singh and Chhota (now expired) against the judgment and decree passed by both the courts below, vide which the suit of the plaintiffs -respondents was decreed for joint possession as owners of half share of the land in dispute measuring 11 kanals 11 marlas and it was further declared that the sale certificates Ex.D -7 and D -8 issued in favour of the aforesaid appellants will have no effect on the rights of the plaintiffs qua their share in the aforesaid land.

(2.) The brief facts of the case are that Mst. Salamat Bibi and Mst. Janat Bibi were owners of the land in question in equal shares, as recorded in the Jamabandi for the year 1939 -40 (Ex.D -1). In the said Jamabandi, the name of Rahim Baksh, who was Hajam by caste, is entered in the column of cultivation as Muafidar. The same is the position in the Jamabandi for the year 1934 -44 (Ex.D -2). Vide registered sale deed dated 27.4.1943 (Ex.D -15), Mst. Salamat Bibi sold her half share in favour of Mehar Chand, father of the plaintiffs, for a consideration of Rs. 800/ -. Thereafter, aforesaid Mehar Chand was recorded as owner of half share in the column of ownership in the Jamabandi for the year 1943 -44 (Ex.P -9). In the column of cultivation, the name of Rahim Baksh continued as Muafidar. In the Jamabandi for the year 1951 -52 (Ex.P -10), Mehar Chand has been again mentioned as owner of half share of the land in dispute. During the consolidation, the old khasra No. was converted into new khasra Nos. and in the consolidation record also, Mehar Chand was recorded as owner of half share. After the consolidation, Jamabandi for the year 1961 -62 (Ex.P -15) was prepared in which Mehar Chand was also recorded in the column of ownership of half share as Malik Kabza and other half share was recorded in the name of Central Government. In the column of cultivation, the names of Gurbux Singh and Chhota (defendants) have been recorded as Gair Marusi through Ex -Muafidar. The same entries continued in the revenue record, as is clear from Jamabandi for the year 1971 -72. On 19.2.1977, the plaintiffs filed a suit for permanent injunction, when they came to know that the Sales Department of the Government of Punjab was going to sell the entire land including their half share. During the pendency of the suit, the sale certificates were issued on 9.1.1978 in favour of defendants Gurbux Singh and Chhota. Then the suit was amended and a prayer was also made for cancellation of the auction sale as well as the aforesaid sale certificates, which are Ex.D -7 and D -8 of the record. An alternative prayer was also made for a decree of joint possession. The said suit was contested by the State of Punjab as well as the defendants Gurbux Singh and Chhota. The State of Punjab in its written statement alleged that the suit property was evacuee property as before partition the same was owned and possessed by Muslims who have migrated to Pakistan and the plaintiffs are not the owners of any share of the property in dispute and they are having no right or interest in the same. The disputed property being the evacuee property can be disposed of by the Government of Punjab under the provisions of Displaced Persons (Compensation and Rehabilitation) Act, 1954 (for short, the 1954 Act'). Since the entire property is recorded in the ownership of Central Government and the plaintiffs have no interest in the same, the question of partition does not arise. It was also alleged that the jurisdiction of the civil court is barred under the aforesaid Act. The defendants Gurbux Sigh and Chhota filed their separate written statement pleading that the civil Court has no jurisdiction to hear the matter and the custodian Department was exclusive owner of the property in dispute and that was rightly sold by it to them and their sale certificates are perfectly valid and legal. They have also become owners of the suit property by way of adverse possession.

(3.) Both the Courts blow have decreed the suit of the plaintiffs. It was held that the plaintiffs are co -sharer of the land in dispute as their father had purchased half of its share from Mst. Salmat Bibi in the year 1943 and thereafter he was recorded as owner of half share in the column of ownership throughout in the revenue record and after the death of their father, they are recorded as owners of half share in the revenue record. It was further held that so far as the remaining half share of Mst. Janat Bibi is concerned, that vested in the Custodian Department after the migration of Muslims from this country and Central Government became owner to the extent of only half share of Mst. Janat Bibi. It was also held that jurisdiction of the civil Court is not barred in the present case because half share of the plaintiffs was wrongly sold by the Sales Department. It was also held that the defendants Gurbux Singh and Chhota cannot be held to have become owners by way of adverse possession, as their possession on the land in dispute was as a tenant, as per the revenue record.