DHARMA Vs. MAHANT SHARYA NATH

JUDGEMENT

(1.) This Regular Second Appeal has been filed by Dharma and other plaintiffs against the judgment and decree of learned District Judge, Rohtak, affirming on appeal the decree of the trial Court whereby the plaintiffs were granted a decree only of symbolical possession of the land in dispute and not of its actual possession. The facts giving rise to the present appeal are that the land in dispute measuring 94 Kanals 14 marlas situated in village Sundana is part of Shamlat Pana Raniyana of which the plaintiffs are the biswedars. The ancestors of the plaintiffs made a Dohli grant of the land in dispute in favour of predecessor of Mahant Saryu Nath, defendant No. 1. Gordhan, Defendant No.2 entered into possession of the land in dispute on behalf of defendant No. 1 and was still in its possession. By registered deed dated 16th July, 1956. defendant No. 1 surrendered his Dohli grant in favour of the biswedars of Pana Raniyan. Gordhan the defendant No.2, refused to deliver possession of the land in dispute to the biswedars. Thereupon Dharma and three other plaintiffs brought the present suit under Order 1 Rule 8, Civil Procedure Code, on behalf of themselves and other biswedars of the said Pana for possession of the land in dispute against Mahant Saryu Nath and Gordhan defendants. According to the plaintiff, they have become entitled to the actual possession of the land in dispute because the Dohli rights of defendant No. 1 have become extinct and have merged in their proprietary rights.

(2.) The case proceeded ex parte against Mahant Saryu Nath defendant No. 1. He was examined as a witness on behalf of the plaintiffs and admitted the plaintiffs claim. Gordhan, defendant No. 2 denied the allegation of the plaintiffs that they were the owners of the land in dispute. He did not admit the surrender of dohli rights in favour of the plaintiffs and averred that the same was void because it had been made for receipt of money. According to defendant No. 2, he was holding the property in dispute as a tenant under defendant No. 1 and even if the surrender by defendant No. 1 in favour of the biswedars was valid, he (defendant No. 2) would become a tenant under the plaintiffs and could be ejected only through the revenue Court and the Civil Court had no jurisdiction to try suit. Following issues were initially framed by the trial Court -

(3.) The trial Court decided all the issues in plaintiffs, favour and against the defendants and decreed the plaintiffs suit on 18th January 1957. Gordhan then went up in appeal and the learned District Judge as per judgment dated 1st May, 1957, confirmed the trial Court's findings on issues 1, 2 and 3 but framed the following additional issues and remanded the case for fresh decision.