BACHAN SINGH Vs. SADHU SINGH

JUDGEMENT

(1.) This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below. The suit of the plaintiff-appellant has been dismissed by both the Courts below.

(2.) Plaintiff-appellant filed a suit for permanent injunction restraining defendant-respondents from forcibly dispossessing him from the suit land on account of partition in between the defendant respondents. The plaintiff-appellant claimed that he earlier filed a suit for permanent injunction in respect of the suit land which was decreed in his favour on 12-6-1975. Defendant respondent No. 2 Teja Singh filed an application seeking setting aside of ex parte decree which was dismissed on 12-1-1977. It is further averred that suit land was mortgaged by defendant-respondent No. 2 to one Karim Baksh which became property of the custodian. Teja Singh remained unable to redeem the suit land from the custodian and later on authorised plaintiff-appellant by an agreement to get it redeemed. It has been alleged that till the time Teja Singh would not pay the mortgaged amount to the plaintiff-appellant, the land would remain with him as mortgagee. Plaintiff-appellant has made averment that he installed tube-well in Khasra No. 24 and has been in cultivating possession of the suit land for over 12 years. Defendant-respondent is alleged to have failed to get possession of the suit land from the plaintiff-appellant and then manoeuvred the filing of an application through defendant-respondent No. 1 Sadhu Singh for partition before Tehsildar. Batala without impleading the plaintiff-appellant as party. On 3-6-1976 the order of partition was passed and it was claimed by the plaintiff- appellant that such an order of partition is not binding on him. It is still further alleged that defendant-respondents are bent upon to take possession of the suit land.

(3.) Defendant-respondent Nos. 1, 4, 5, 6 and 8 filed the written statement and contested the suit. Passing of an ex parte decree in favour of plaintiff-appellant has been controverted by alleging that the decree is collusive as defendant-respondent No. 2 Teja Singh is uncle of plaintiff-appellant and, therefore, decree has no effect on the rights of the aforementioned defendant-respondent. The possession of the plaintiff-appellant has also been disputed and it is claimed that plaintiff-appellant has no right to redeem the suit land. The land has been redeemed in favour of Teja Singh and it has been categorically denied that the suit land is mortgaged with plaintiff-appellant. The defendant-respondent further alleged that they have been owner in possession of the suit land and the plaintiff-appellant has never installed any tube-well etc. The version of the plaintiff-appellant with regard to institution of partition proceedings have also been denied. It is alleged that the plaintiff- appellant was party in the partition proceedings in which they have got possession of the suit land. The appeal filed by the plaintiff-appellant against the order of partition has been dismissed and, therefore, it is claimed that plaintiff-appellant is bound by the order of partition. Defendant- respondents in their written statement also pleaded that through partition proceedings on 18-7-1978 they had taken possession and have deposited compensation in the Court. It is still further claimed that the suit is barred under the provisions of the Specific Relief Act, 1963 and Section 80 of the Punjab Land Revenue Act, 1887. On the pleadings of the parties, the trial Court framed the following issues :