RAJINDER SINGH Vs. DURGA DEVI AND OTHERS

JUDGEMENT

(1.) This is plaintiff's second appeal whose suit for possession of the Taur in dispute was decreed by the trial court,but has been dismissed in appeal.

(2.) Rajinder Singh, plaintiff-appellant originally filed the suit for permanent injunction to restrain the defendants from interfering in his possession over the vacant site alleging himself to be in possession of the same. Later on, amendment of the plaint was allowed by the trial court and the plaintiff was allowed to urge in the alternative for possession of the disputed site. It was alleged that Mst. Durga Devi, defendant was alleging having purchased this piece of land from Gurbakhash Singh and others which was a sham transaction as they had no right to sell the property. The suit was contested on the plea that the suit for injunction, as such, was not maintainable, and the necessary parties i.e. the vendors of defendant have not been impleaded as party to the suit. On merits, it was contended that Mst. Durga Devi was in possession of said property since its purchase on 1.12.1969 (Ex. D.1) from Udham Singh etc through a registered sale deed for Rs. 3,000/-Besides that, she has raised construction on the said land. The trial court found that the plaintiff has proved his ownership of the suit property while Mst Durga Devi defendant has failed to establish the same as the title of her vendors on the suit property was not proved on the file. It was further found that the defendants were in possession of the property and therefore, the suit for injunction as such was not maintainable. Ultimately, plaintiff's suit for possession was decreed. On appeal, the learned District Judge reversed the said finding of the trial court as to the ownership of the plaintiff. He came to the conclusion that the plaintiff Rajinder Singh has failed to establish is ownership on the site in dispute. It was also found that the defendant was in peaceful and actual possession which could only be disturbed by true owners. As a result of these findings, the plaintiff's suit was dismissed. Dissatisfied with the same, the plaintiff has come up in second appeal in this court.

(3.) From the evidence on the record, the plaintiff tried to prove his title over the site in dispute on the basis of a sale deed Ex.P.5 dated 14.4.1890 said to have been executed by one Ganpat Ram who was alleged to be the occupancy tenant over the suit land. According to the plaintiff, Ganpat Ram was entered as occupancy tenant in the Jamabandi for the year 1984 Ex.P.8.These occupancy rights were transferred in favour of Nagina Singh, the grand-father of the plaintiff, Rajinder Singh. Later on, on the death of Nagina Singh, his two sons Balwant Singh and Ram Narain partitioned the joint property belonging to the family and later on, on the death of Balwant Singh, the property was partitioned amongst his seven sons including the plaintiff. By virtue of that partition the site in dispute had fallen to the share of plaintiff. Since by virtue of the Punjab Occupancy tenants (vesting of Proprietary Rights) Act, 1953, the occupancy rights have come to an end and therefore, the plaintiff has become its owner. The finding of the lower appellate court, according to learned counsel for the plaintiff, is wrong and illegal as it has failed to appreciate the documentary evidence on the record. According to the learned counsel, the two Partition deeds Ex. P 10 dated 20.10.1907 and Ex P 9 of the year 1945 were admissible in evidence as the same were only Memorandum of partition. But the lower appellate court did not take into consideration these two documents on the ground that they required registration being partition deeds. It was also contended that the plaintiff has been in continuous possession of the suit land from the year 1890 when it was purchased by Nagina Singh from Ganpat Ram.