DEV PARKASH Vs. KULWANT RAI BERRY

JUDGEMENT

(1.) THIS is a revision petition against the order of the Commissioner dated 1.12.1993 vice which he had endorsed the order of the Collector, Ludhiana dated 23.12.1991 and Assistant Collector Grade-II, Ludhiana in connection with correction of Khasra Girdawari relating to Khasra No. 7963/5983/18/9, 7955/5983/18/1, situated in village Gill No. 2, Tehsil and Distt. Ludhiana in favour of Kulwant Rai Berry s/o Jai Jai Ram Berry. Arguments in this case were heard on 11.11.1997 and the case was adjourned to 18.11.1997 for announcement of order.

(2.) THE facts of this case are that Kulwant Rai, respondent filed an application before the Tehsildar, Ludhiana on 5.10.1990 in which he stated that he was the joint owner of the above land, the other co-sharers stayed outside and he was the only one residing on the said land; the Patwari Halqa had erroneously entered the Girdawari for sauni, 1990 as 'khudkasht malkan' and this should be changed in his favour as per the situation obtaining at site. The Tehsildar Ludhiana accepted the request of Kulwant Rai Berry and on 29.11.1990 ordered the Girdawari in land measuring 3 bighas 14 biswas 15 biswansi, contained in Khasra No. 7963/5988/18 min. in favour of Kulwant Rai Berry. While doing so he recorded that as per his site inspection in an area of 3B-4B-0B, Chari and Bajra 'Chara' had been planted, and in the remaining 1B-5B-11B, there was a 'ghair mumkin makaan' on which residence of Kulwant Rai s/o Jai Jai Ram was established and that area was endorsed by Darshan Singh Lambardar.

(3.) THE grounds in the revision petition are that the petitioner is in possession of the land in dispute as a co-sharer. In his application dated 5.10.1988 Kulwant Rai Berry had stated that the respondent No. 1 is the owner in joint Khasra Girdawari and the other co-sharers are residing outside, but the names of the other co-sharers were not shown in this application and therefore the application was not complete and according to law. On the application made by respondent No. 1, Assistant Collector Grade-II issued notices only to one Indu Kumari and Dinesh Kumar leaving out all other co- sharers. Even Indu Kumari and Dinesh Kumar could not be served as they happened to be out of station. The Assistant Collector Grade-II fixed the spot inspection for 29.12.1990 vide his order dated 14.12.1990. On 17.12.1990, the present petitioners made an application for being impleaded as parties but Assistant Collector Grade-II did not decide this application, and instead, visited the spot without informing the petitioners and corrected the Girdawari in favour of Kulwant Rai Berry. In the existing Girdawari the land in dispute was shown to be in possession of 'Maqbuza malkan'. Therefore, for any change in that status it was necessary to give a notice to other co-sharers. The respondent No. 1 Kulwant Rai Berry, had filed a suit for permanent injunction against Harbans Lal Gupta, respondent No. 17 for restraining him from dispossession/interference in his peaceful possession of land measuring 4B-8B-3B which was dismissed by Sub Judge Ist Class, Ludhiana on 7.9.1989. An appeal against the said order was also dismissed by the Additional District Judge, Ludhiana on 4.6.1990 when it was held that Kulwant Rai Berry was not in possession of the entire land on behalf of his co-sharers. Photo copies of the judgments were attached with the revision petition. It was further stated that four days after the dismissal of the suit dated 4.6.1990, the respondents filed another suit against Jaswant Rai etc. in another Court for declaration and obtained a status quo order which was vacated by Sub Judge on 28.1.1993, after making adverse comments against Kulwant Rai Berry. The learned Judge observed that Kulwant Rai Berry had not come to the Court with clean hands and also that the plaintiff was not in exclusive possession over the property in dispute and the plaintiff could not be allowed to harass and disturb defendants No. I to 29.