LUBHAYA RAM Vs. BALAKI RAM

JUDGEMENT

(1.) Plaintiff filed a suit for joint possession. The said suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Pehowa vide judgment and decree dated 17.5.2004. Aggrieved by the same, plaintiff filed an appeal and the same was dismissed by the District Judge,Kurukshetra vide judgment and decree dated 2.11.2004. Hence, the present appeal.

(2.) The case of the parties, as noticed by the learned District Judge, in paras 2 to 4 of its judgment reads as under:- " 2.The plaintiff earlier filed a suit no.488 of 1989 against Balki Ram present defendant and his sister Shanti Devi claiming 1/3rd share i.e.1/6th share each of Balaki Ram and Shanti Devi in 52 kanals 1 marla land situated in village Sarsa as described in para no.1 of the plaint on the basis of oral exchange in which the plaintiff gave his 10 kanals 16 marlas land situated in village Sarsa as described in para no.4 of the plaint i.e. 5 kanals 8 marlas each to Balkai Ram and Shanti Devi. The said suit was decreed on 22.7.1989. The plaintiff went to Patwari on 14.6.2002 to obtain copy of jamabandi and mutation sanctioned on the basis of aforesaid decree and thereupon learnt that Balaki Ram defendant had played fraud on the plaintiff as Balaki Ram had already sold his 1/6th share in 52 kanals 1marla land to some other person, but the said sale was not depicted in the revenue record and the defendant's name continued in the revenue record even after sale showing him co-sharer to the extent of 1/6th share in the said land. Despite enquiry, the defendant did not disclose the factum of said sale and kept the plaintiff in dark and obtained exchange decree regarding the plaintiff's land. Thus, the plaintiff is still owner of 5 kanals 8 marlas land being 1/2 share of 10 kanals 16 marlas land. The defendant is however denying the plaintiff's title on the basis of aforesaid exchange decree. The plaintiff is not bound by the said decree in view of the aforesaid fraud played by the defendant.

(3.) The plaintiff is still joint owner in possession of 5 kanals 8 Marlas land being 1.2 share of 10 kanals 16 marlas land. The defendant,however, got sanctioned mutation no.2858 on 18.3.1990 in his favour in respect of said 5 kanals 8 marlas land. The wrong revenue entries based on illegal and fraudulent decree of exchange has cast cloud on the title of the plaintiff over the said land. The plaintiff is still owner thereof. The defendant however refused to admit the plaintiff's claim. The revenue entries are liable to be rectified by showing the plaintiff as owner in possession of the said land. The defendant also tried to dispossess the plaintiff forcibly from the said land. So the plaintiff sought decree for joint possession of land measuring 5 knals 8 marlas being 1/2 share of 10 kanals 16 marlas land described in para no.4 of the plaint, as the decree dated 22.7.1989 (wrongly mentioned in the plaint as dated 23.7.1989) passed n civil suit no.408 (wrongly mentioned in the plaint as suit no.488) of 1989 is not binding on the rights of the plaintiff and the same be set aside and declared null and void.