DAULAT SINGH Vs. DILBAGH SINGH

JUDGEMENT

(1.) THE plaintiff is in second appeal aggrieved against the judgment and decree passed by the first appellate court whereby in suit for joint possession was dismissed by the first appellate court in appeal.

(2.) THE plaintiff Daulat Singh filed a suit for joint possession of 11 kanals 17 marlas being one third of 35 kanals 13 marlas of land as described in the jamabandi for the year 1973-74. One Faqiria was owner of the suit land. He died on 3.11.1956 without leaving behind any issue or widow. The plaintiff alleged that after his death Kartara and Sansari sons of Surjan and Smt. Kartari daughter of Surjan entered into possession of the suit land being agnates and heirs of deceased Faqiria. The estate of Sansari has devolved upon Dharam Singh and that of Kartara upon Dilbagh Singh. Smt. Kartari died on 3.1.1978. The plaintiff is her heir on the basis of registered will dated 3.1.1974. Defendants No. 3 to 6 are the purchasers of the land from defendants No. 1 and 2 i.e. Dilbagh Singh and Dharam Singh.

(3.) THE learned trial court decreed the suit holding that Smt. Kartari is deemed in law to have entered into possession of the suit land as one of the co-sharers. The learned trial court also held that the plaintiff is proved to be legal heir of Smt. Kartari on the basis of the Will Ex.P.1, the execution of which is proved by P.W.3 Kanwal Singh, a marginal witness and P.W.2 Gurdev Singh, the scribe of the will. The learned trial court also held that the plea taken by defendants No. 1 and 2 in the written statement does not amount in clear terms to a plea of adverse possession. Even if, it is assumed that the aforesaid plea amounts to plea of adverse possession even then there is no evidence on record to show whether at any stage Smt. Kartari who has not been shown to be a literate and vigilant lady and such adverse possession was in the knowledge of the true owner and thus, held that the suit is within the period of limitation. However, under issue No. 9, the learned trial court found that defendants No. 3 to 6 are Harijans whereas the plaintiff and defendants No. 1 and 2 are Jats. It has also been found that the name of Kartari never appeared in the revenue record after the death of Faqiria till 31.3.1977 when the sale deeds were executed and therefore, defendants No. 3 to 6 are vendee-purchasers without notice of the claim of the plaintiff. Consequently, the learned trial court decreed the suit for joint possession except the land comprising in Khasra Nos. 32/23/7 and 32/24/7 i.e. the area sold by defendants No. 1 and 2 in favour of defendants No. 3 to 6. It was also found that the area sold shall be adjusted during the partition out of the area falling to the share of defendants No. 1 and 2.