MEERA DEVI Vs. STATE OF HARYANA

JUDGEMENT

(1.) Briefly stated, facts of the case are that plaintiff Sh.Moti Ram (since dead) through his wife Smt.Meera Devi and son - Dhan Singh had brought a suit for declaration to the effect that they are owners in possession of the suit land measuring 55 kanals 15 marlas in equal shares, whereas defendant No.3 - Smt.Gulabi is owner in possession of land measuring 79 kanals 7 marlas situated at village Bhuna, Tehsil Fatehabad then District Hisar and defendant No.1 i.e. State of Haryana through Collector, District Hisar as well as defendant No.2 - Rehabilitation Department through Tehsildar Sales, Hisar have no concern therewith and that orders dtd. 31/7/1989 and 16/4/1984 passed by defendant No.2 are wrong, illegal, null and void without jurisdiction so is the order of allotment passed by defendants No.1 and 2 in favour of Smt.Jai Kori and Sanad allotment dtd. 16/9/1991 and mutation No.1724/1 and report roznamcha No.407 dtd. 3/8/1991.

(2.) The plaintiffs claimed that they were owners in possession of the suit land situated at village Bhuna, Tehsil Fatehabad(now District), then District Hisar measuring 54 kanals 9 marlas having purchased it from Dhanpat Rai son of Shri Ram vide sale deed dtd. 26/5/1977 for a sale consideration of Rs.19,000.00; that defendant No.3 had purchased 10 acres of land vide sale deed dtd. 20/5/1970; that the predecessor in interest of the plaintiffs mortgaged the land to the Muslims to the extent of 817/3362 share vide mutation No.2040 dtd. 23/7/1943; that the possession of the land remained with mortgagor; that the plaintiffs were in possession as owners of the suit land to the extent of 55 kanals 15 marlas for the last 14 years and prior to them their predecessor in interest were in possession; that the defendant No.3 was in possession of the suit land measuring 79 kanals 7 marlas for the last 12 years peacefully without any disturbance and prior to her, her predecessor in interest had been in possession of that land; that defendant No.2 had passed impugned orders dtd. 16/4/1984 and 31/7/1989 in connection with the suit land, which are liable to be set aside since if the suit land was mortgaged with the Muslims then defendants No.1 and 2 never remained in possession thereof and plaintiffs and defendant No.3 have become owners by efflux of time; that defendant No.3 had previously filed a Civil Suit No.558 of 1986, which was decreed by Civil Judge, consequently defendant No.3 was declared owner of 10 acres of land; that defendants No.1 and 2 were directed to get the land partitioned. According to the plaintiffs, the order of allotment passed by defendants No.1 and 2 in connection with land measuring 29 kanals 13 marlas in favour of Smt.Jai Kori and Sanad allotment dtd. 16/9/1991, the mutation sanctioned on the basis thereof as well as report roznamcha are wrong and illegal, liable to be set aside; that defendants No.1 and 2 wanted to interfere in the possession of the plaintiffs and defendant No.3 of which they have no right. As such feeling aggrieved, the plaintiffs had brought the suit in question.

(3.) On notice, defendants No.1, 2, 4 and 5 had appeared and filed written statement contesting the suit, whereas defendant No.3 did not appear despite service, as such was proceeded against ex parte. Defendants No.1 and 2 filed a joint written statement raising preliminary objections with regard to jurisdiction of the Civil Court to entertain and try the suit contending that plaintiffs should have approached the higher authorities of the department instead of knocking at the door of the Civil Court; that the suit is bad for want of notice under Sec. 80 CPC; that the plaintiffs had no locus standi to file the suit; that the suit was not maintainable; that the suit was bad for non-joining of necessary parties; that the suit was barred by limitation; that the plaintiffs had not challenged the order dtd. 31/7/1989 of the Tehsildar (Sales) - cum - Assistant Collector Ist Grade in the competent Court of law and as such the suit was barred by the principle of res judicata as well as under Order II Rule 2 CPC. On merits, such defendants submitted that S/Sh. Moti Ram son of Ratti Ram and Dhani Singh son of Moti Ram had purchased area measuring 168 kanals 2 marlas shown as Arazi Matruka in the jamabandi for the year 1976-77 subject to the rights of the Custodian/Government which is clear from the mutations No.663 and 1139, therefore, they were wrongly recorded as mortgagors and Arazi Matruka as mortgagee; that the area was mortgaged with muslims/evacuee much before the partition of the country and the right, title and interest of muslims evacuee in the land vested in custodian automatically by operation of law; that the land was not got redeemed within the period of limitation and therefore the Custodian/Government became its owner by efflux of time for redemption much before the alleged sale of the ownership rights by the mortgagors to the plaintiffs; that the mortgagors had no right to sell the same to the plaintiffs because he ceased to be owner/mortgagor of the land had no right, title and interest therein; that the plaintiffs have no right, title and interest in the evacuee shares in the land, which had already vested in the custodian department; that the land was partitioned vide order dtd. 24/7/1984 but the order was set aside by the Civil Court vide judgment and decree dtd. 12/4/1989 in the suit filed by Smt.Gulabo and fresh proceedings for partition of the land were initiated in compliance with the decree and the land was partitioned vide order dtd. 31/7/1989; that 29 kanals 13 marlas of land was allotted to Smt.Jai Kori and possession was delivered to her. Refuting the remaining allegations, such defendants prayed for dismissal of the suit.