YASIN KHAN AND ORS. Vs. GHIASUDDIN AND ORS.

JUDGEMENT

(1.) DEFENDANTS are in second appeal against the judgment and decree dated 16.1.1988 passed by Learned Additional District Judge, whereby the judgment and decree dated 5.8.1986 passed by learned Sub Judge, Faridabad, dismissing the suit, has been set aside and the suit has been decreed in appeal. Brief facts of the case are that the plaintiffs filed suit for declaration and joint possession to the effect that they are owner in possession of the suit land according to the shares as mentioned in para No. 1 of the plaint. Plaintiffs submitted that according to jamabandi for the year 1939 -40, Suleman Khan, Sultan Khan and Mehmood, predecessor -in -interest of the plaintiffs, were owners in possession of 1/3rd share in the land and defendants were owners of 2/3 rd share of the said land, which at the relevant time bore khewat No. 80 Khatauni No. 190 -193 and Khasra No. 61, 62, 271, 65 and 168. Consolidation took place in the village in the year 1950 -51 and Panchayat deh came to be recorded as owner of the suit land in the revenue record.

(2.) ON 26.2.1969, defendants filed suit against the gram sabha claiming that they are co -sharers in possession since 1939 -40 and the area under their ownership and possession should be excluded from being vested in Panchayat as shamlat deh. The said suit was decreed on 7.3.1970 and the land measuring 104 kanals 15 marla out of the total shamlat land measuring 314 kanals 1 marla was brought out from the purview of vesting and mutation No. 740 was also sanctioned on 13.6.1972.

(3.) THE suit was contested by the defendants on all possible fronts viz. maintainability, non -joinder of necessary parties, estoppel, res judicata and Order 2 Rule 2 CPC etc. The defendants alleged that the plaintiffs have nothing to do with the land in question and they projected larger connotation in terms of co -sharership in the entire shamlat land of which they claimed themselves to be co -sharers in their own right, irrespective of unit arising of common ancestor, namely, Maglu. Defendants asserted that the land was allotted only to the defendants by the dint of aforesaid Civil Court decree and the mutation was rightly sanctioned in their favour and the plaintiffs have no share in the property in question.