BHARTO Vs. NATHU

JUDGEMENT

(1.) Mst. Chalti was the daughter and the only heir of late Lehri son of Chet Ram resident of village Sheriya, tehsil Jhajjar, who owned the suit land described in para 1 of the original plaint. Nathu defendant- respondent was cultivating the suit land under him as a tenant. After his death, Mst. Chalti tried to get a mutation of inheritance in respect of the suit land sanctioned in her favour. This mutation was entered in the Village Mutation Book, but was not sanctioned because of a general ban on the attestation of mutations in view of the operations of consolidation of holdings in the village. She filed an application before the Assistant Collector Ist Grade for the ejectment of the respondent which was allowed on 29.1.1970. The respondent preferred an appeal before the Collector, Rohtak, which was allowed and the order of the Assistant Collector was set aside on the ground that her name did not figure as an owner of the suit land in the revenue record and as such she had no locus standi to seek ejectment of the respondent. The Commissioner, Ambala Division, affirmed the decision of the Collector on an appeal filed by her, which was dismissed. Thereafter, she filed a suit in the Court of Sub Judge, Jhajjar, for declaration of her title to the suit land, which was decreed on 13.12.1971. She was declared to be the only legal heir of her father Lehri deceased and as such the owner of the suit land. The respondent preferred an appeal which came up for hearing before the learned Additional District Judge. Since the suit for declaration of her title simpliciter was contended to be not maintainable, she was allowed to withdraw the suit so as to file a fresh one along with the consequential relief of possession. She, however, filed a fresh suit for possession alone without claiming declaration of her title. Shri B.R. Gupta, Sub Judge, Jhajjar, held vide his order dated 12.7.1973 that the suit for possession was not maintainable in the Civil Court as there was relationship of landlord and tenant between the parties. He, therefore, ordered the plaint to be returned to her for presentation to the appropriate revenue Court. Instead of approaching the revenue Court once again, she filed the instant suit for declaration to the effect that she is the owner of the suit land and also for a decree for possession thereof as a consequential relief. The respondent in his written statement denied that she was the daughter or legal heir of Lehri deceased. Instead, he pleaded that he had been occupying and cultivating the suit land without payment of any rent and had become its owner by adverse possession. He also claimed to be a collateral of Lehri deceased and thus his only legal heir. He further contended that the Civil Court had no jurisdiction to try the suit; she had no locus standi and that the suit was barred by res judicata. During the pendency of the suit, Mst. Chalti died and the present appellants were brought on record as her legal heirs. The suit was ultimately decreed by the learned Sub Judge Ist Class, Jhajjar, vide his judgment and decree dated 6.2.1976. The respondent thereupon preferred an appeal which was allowed by the learned Senior Sub Judge (with enhanced Appellate Powers), Rohtak, vide judgment and decree dated 11.5.1977. The appellants have, thus, preferred the present regular second appeal in this Court.

(2.) As many as six issues were framed by the learned trial Court. However, for the decision of the present appeal, it is necessary to set out only the following three issues, which were agitated before the learned lower Appellate Court :-

(3.) The learned Senior Sub Judge affirmed the finding of the learned trial Court on issues Nos. (1) and (3) and held that the appellants are the owners of the suit land as their predecessor-in-interest Chalti was the daughter of Lehri, who was its original owner. It was further held that the suit was not barred by res judicata. However, issue No. (4) was decided against the appellants and it was held that in spite of the fact that respondent had denied the title of Mst. Chalti and had instead set up his own title, the appellants could not maintain the suit for possession and as such they were relegated to their remedy for ejectment of the respondent before the revenue authorities.