SAT PAL Vs. DEVI CHAND

JUDGEMENT

(1.) - This appeal has been directed by Sat Pal plaintiff against the judgment and decree, dated March 23, 1979 of the learned Additional District Judge, Karnal, whereby the judgment and decree dated August 19, 1978 passed by the Subordinate Judge First Class, Kurukshetra, were reversed and finding of the learned Subordinate Judge on the question of mortgage was set aside and the matter was left open to be decided in future litigation, if any. The suit for injunction was dismissed on the ground that plaintiff was not in possession of the suit land. The suit for declaration of title was dismissed, leaving the parties to bear their own costs, on the ground that no cause of action for declaration of title had accrued to the plaintiff.

(2.) FACTS are that Sat Pal plaintiff filed a suit for declaration on the allegations that he is owner in possession of 1/2 share of land measuring 104 Kanals 2 Marlas fully described in Para 1 of the plaint situated at village Bubka, Tehsil Thanesar, District Kurukshetra, as mentioned in the Jamabandi for the year 1971-72 and that he is in actual possession as owner of land measuring 49 Kanals 16 Marlas as share of the plaintiff on specific Khasra Numbers by mutual oral and private partition with the co-sharers, fully described in Para No. 2 of the plaint situated in the same village. It was pleaded by the plaintiff that he neither mortgaged the suit land with Kunta Wanti nor did he execute any mortgage deed in her favour for any consideration. There was not even an oral transaction between the plaintiff and Kunta Wanti. However, she in connivance with revenue authorities secured fictitious entries of mortgage in her favour and got Mutation No. 1240 dated September 8, 1967 sanctioned in her favour which is also fictitious, fraudulent, void and not binding on his rights. He claimed that he is owner in possession of the suit land since the death of his father and continued to be in possession till date. It was further pleaded that on the application of Kunta Wanti, proceedings under Section 145 of the Code of Criminal Procedure, were initiated by the Sub-Divisional Magistrate, Thanesar, who appointed Naib Tehsildar as Superdar who obtained constructive possession of the land in question. According to Sat Pal plaintiff, order dated December 31, 1975 passed by the Sub-Divisional Magistrate, Thanesar, is illegal, void ab initio, arbitrary and is liable to be set aside. It was also alleged that Devi Chand husband of Kunta Wanti tried to take forcible possession of the land in question on the basis of revenue entries which have been ordered to be corrected by the Collector, Kurukshetra. It was alleged that defendants refused to concede his claim and to desist from taking forcible possession of the land on the basis of wrong and false entries. Accordingly, he filed a suit for declaration that he is owner in possession of 1/2 share of the land detailed in Para No. 1 of the plaint and for permanent injunction against the defendants.

(3.) THE parties went to trial on the following Issues : (1) Whether the plaintiff is owner in possession of the suit property to the extent of 1/2 share ? OPP (2) Whether the possession of the suit property is with defendant No. 1 through defendant No. 2 ? OPD (3) Whether the impugned mortgage entries are fictitious ? If so, the effect thereof ? OPP (4) Whether the suit is not maintainable in the present form ? OPD (5) Whether the suit is time barred ? OPD (6) Relief. Issues 1, 2 and 3 were taken up together. After considering the oral and documentary evidence led by the parties, the learned trial Subordinate Judge held that plaintiff was owner of the land in question to the extent of 1/2 share therein. As regards the possession, it was held that it was the Receiver who was in possession of the land in question for the last about two years and there was no evidence that there had been any decision of the proceedings under Section 145, Code of Criminal Procedure, or that the possession of the land in question had been restored to either party in execution of any order of the competent authorities. The mortgage entries were held to be fictitious. Resultantly, it was found the alleged mortgage shall be taken to be non-existent and that the plaintiff was not in possession of the land in dispute. The suit was held to be maintainable. Under Issue No. 5, it was observed that in view of findings on Issues 1 to 3, the entries regarding the mortgage were fictitious and the plaintiff continued to be owner in possession of the land in question; the suit was held to be within time. Consequently, the suit of Sat Pal plaintiff was decreed, declaring the plaintiff as owner in possession of 1/2 share of the land mentioned in Relief clause and as a consequential relief, defendants were restrained from interfering with the possession of the plaintiff over the suit land. The plaintiff was also held to be entitled to the costs of the suit.