MAYA DEVI Vs. OM PARKASH

JUDGEMENT

(1.) The plaintiffs-respondent filed suit for possession in respect of site measuring 55 sq. yards, 3 sq feet shown as 'ABCD' and 'EFDG' in the site plan. Further, the demolition of the un-authorised construction was sought. Damages of Rs. 1,000/- as well as future damages at the rate of 85/- per month for use and occupation of the site in dispute since 1.4.1968 25-5-1969 were claimed. Prayer for issuance of permanent injunction restraining defendants Nos. I and 3 from realising rent from defendant No 2 with a direction to defendant No. 2 to pay rent to the plaintiffs was made. It was averred that the site in dispute forming part of Khasra No. 312 measuring I kanal was owned by Balwant Singh who sold 1/2 share to Om Parkash plaintiff and on the death of Balwant Singh his legal representatives sold the other, 1/2 to the plaintiffs. Defendants Nos. I & 3 were alleged to have taken forcible possession by constructing two Kothas and placing one wooden cabin thereon and had leased them out to defendant No. 2.

(2.) The defendants who contested the suit contended that Bakhtawar Singh had purchased share of Banarsi Dass etc. out of Bhasra Nos. 4563 4127/2835 measuring 3 bighas vide sale-deed dated 19.4.1954 and they had constructed rooms and placed a wooden cabin on the site in dispute as co-sharers. The title of Balwant Singh as cosharer in Khasra Nos. 4563/4127 2835 was not disputed. It was averred that during consolidation proceeding in the year 1961-62 Khasra Nos. 311 and 312 were carved out in lieu of the above khasra numbers, and Balwant Singh got the land shown as partitioned during consolidation proceedings and got Khasra No. 312 in lieu of his share while the other co-sharer's were shown joint of Khasra No. 311. The defendants challenged the above said partition in the suit contending that the same was illegal and without jurisdiction and the site in dispute was not the ownership of the plaintiffs alone as no partition had taken place amongst the co-sharers. The plaintiffs could only seek the relief of partition. Defence of absence of necessary party was raised. Adverse possession was also claimed.

(3.) In the replication, the plaintiffs specifically stated that Khasra Nos. 311 and 312 were allotted in lieu of Khasra Nos. 4563, 4127 and 2835 and Khasra No. 312 was allotted to Om Parkash alone and possession was given to him in repartition. The said repartition was challenged in appeal under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1941 (for short the Act. The order of repartition was confirmed as the appeal was dismissed. In view of Section 44 of the Act, the repartition and allotment could not be challenged in Civil Court. Balwant Singh had been exclusively using the said site and claiming title through the allotment in consolidation, and the other co-sharers claiming title with respect to Khasra No. 311.