DIDAR SINGH Vs. AMAR SINGH

JUDGEMENT

(1.) The appellant-plaintiffs are in Regular Second Appeal against the judgment and decree dtd. 22/9/2000 of the Lower Appellate Court, whereby, judgment and decree rendered by the trial Court decreeing the suit of the plaintiffs for possession of the suit property, has been set aside, in essence, suit decreed by the trial Court, has been dismissed.

(2.) The plaintiffs-Didar Singh, Amrik Singh and Gurnam Singh instituted the suit against defendant-Amar Singh son of Telu Ram for possession after demolition of any construction raised in the land comprised in khata no.1954/2187 khasra no.477/2(0-4) situated in Kharar as per the jamabandi for the year 1986-87 (hereinafter referred to as "suit property") on the premise that in pursuance to the partition proceedings initiated in 1966 and decided on 10/8/1988, the instrument of partition (sanad takseem) and warrants of possession were issued/executed on 4/8/1989. The portion of khasra number, ibid was vacant, whereas portion where the defendant constructed a wall had fixed a gate but only symbolic possession of the same was delivered to the plaintiffs as the revenue authorities did not have power to demolish the same and in lieu thereof, photocopy of rapat roznamcha dtd. 4/8/1989 was attached. Defendant being strong head person by taking advantage that suit property was lying vacant taken the forcible possession on 24/12/1989. The mater was, immediately, reported to the Kharar police by lodging a report but no action was taken. The suit for permanent injunction during the vacation period was filed and the vacation Judge was pleased to grant the injunction restraining the defendant from encroaching and raising any construction in khasra no.477/2 but by the time, the said injunction order could be served upon the defendant, he had already trespassed upon the land of the plaintiffs, therefore, the suit for possession was filed.

(3.) The aforementioned suit was contested by the defendant-Amar Singh by raising a plea that land, alongwith other khasra nos.477 (0-12) and 483, was jointly owned and possessed by the plaintiffs and defendant and many other right-holders. It was not covered by the definition of the land as per the provisions of Punjab Land Revenue Act, therefore, revenue officer was not competent to entertain the application for partition or pass partition order, thus, the orders were without jurisdiction. The allotment of khasra no.477/2 to the plaintiffs was denied as well as the instrument of partition. The defendant had constructed a boundary wall around khasra no.477 which bore a municipal number and occupied house, therefore, jurisdiction of the revenue Court was ex facie barred. Even during the consolidation, khewat and khasra numbers were bifurcated. In order to create the confusion, the suit for partition of only one khasra number was filed which was in possession of answering defendant but did not include the other khasra number, i.e., 483. The entire area of khasra no.483 was of six marlas. No warrants of possession were ever issued or executed. However, in paragraph 2 raised the following pleas:-