SWARANJIT KAUR ETC. Vs. VIJAY SINGH

JUDGEMENT

(1.) In nutshell, facts of the case are that plaintiff Vijay Singh son of Waryam Singh, presently residing at Chandigarh had brought a suit against defendant Sukhdev Singh son of Gurbachan Singh (since deceased) represented by his legal representatives i.e. widow Smt.Swaranjit Kaur and sons Harpartap Singh and Gurpartap Singh, residents of Patti Jhambra Shahabad, Tehsil Shahabad, District Kurukshetra, seeking a declaration that entries of the defendant being in possession as 'Gair Marusi' in various jamabandis 1969-70 till date are illegal, null and void, not binding upon the rights of the plaintiff and other co-sharers, with a direction to the defendant to hand over the vacant possession of the land measuring 10 kanals 2 marlas comprised in khewat No.150 min, khatoni No.151 min, rect. No.58 and khasra No.27/1 by passing a decree for possession, in addition to that asking for grant of mesne profits for the use and occupation of the suit property besides costs of the suit. As per the version of the plaintiff, agricultural land measuring 11 kanals 5 marlas comprised in Khewat No.150, khatoni No.151/1, rectangle No.167(1-3), rectangle No.58, khasra No.27/1(10-2) situated at Patti Jhambra Shahabad (M), Tehsil Thanesar, District Kurukshetra was owned and possessed by Waryam Singh, father of the plaintiff along with other co-sharers in terms of the jamabandi for the year 1965-66; that while preparing jamabandi for the year 1969-70, the defendant Sukhdev Singh got a wrong entry incorporated in the jamabandi in collusion with revenue officials regarding his possession over land bearing rectangle No.58, khasra No.27/1(10-2), as 'gair marusi', although the said land was never leased out to the defendant Sukhdev Singh by owners of the land; that Waryam Singh has expired and his estate was inherited by his son, the plaintiff being his sole legal representative; the defendant had purchased 1 kanal 1 marla of land i.e. 6/63 share in the suit land along with his brothers vide registered sale deed dated 19.11.1981 and by virtue of said sale deed, he had become co-sharer in the suit property; that the plaintiff being tenant over the suit property had preempted the said sale and suit for pre-emption filed by him was decreed on 1.8.1984; the plaintiff had deposited the entire pre- emption amount as per decree passed by the Court on 28.9.1984; the amount was deposited in the Court itself in terms of the decree and such amount has already been withdrawn by the defendant and his brother, therefore, the defendant was not left with any right in the suit property; that the plaintiff had filed an execution application in which the Executing Court could not deliver the possession of 1 kanal 1 marla i.e. 6/63 shares out of the suit property since the land was not partitioned amongst the co-sharers and the portion which was to be delivered to the plaintiff could not be specified being share of the khewat, although symbolic possession had been delivered to him regarding the said share vide Court order dated 6.6.2000. According to the plaintiff, the defendant has been in illegal possession of land bearing rectangle No.58, khasra No.27/1 out of the suit property against the wishes of plaintiff and other co-sharers without making any payment to the plaintiff and other co-sharers, therefore, he is liable to pay mesne profits to be determined by the Court under Order 20 Rule 12 CPC; that when the defendant refused to admit the claim of the plaintiff and to hand over the vacant possession of the land besides paying mesne profits, the plaintiff brought the suit in question.

(2.) On notice, the defendant appeared and filed a written statement contesting the suit taking up various legal objections including with regard to locus standi of the plaintiff to bring the suit, maintainability of the suit, plaintiff not having any cause of action to file the present suit; that the plaintiff was estopped by his own act and conduct from filing the suit; that the Civil Court does not have jurisdiction to entertain and try the suit; that the suit being bad for non-joinder and mis-joinder of the necessary parties; that the plaintiff had concealed true and material facts from the Court; suit being not properly valued for the purpose of Court fee and the suit being time barred etc. According to the answering defendant, the father of the plaintiff was not owner of the land along with other co-sharers and entry in the jamabandi in favour of the defendant was legal and correct; that he is in possession as tenant of said land since long; that defendant and his brother had purchased some land vide sale deed dated 19.11.1981 and he is tenant over land comprised in rectangle No.58 khasra No.27/1(10-2); that the plaintiff never remained tenant on the suit land and decree dated 1.8.1984 is not binding on the defendant. So far as right of tenancy is concerned, the plaintiff had filed an execution and has taken the symbolic possession of the land vide report No.147 dated 6.11.1984 and also got entered the mutation of the decree and the execution was decided as fully satisfied, thereafter, the plaintiff had filed a second execution petition in the Court for getting the actual possession of the suit land, which was dismissed by the Court, therefore principle of res judicata is applicable and the plaintiff has no right to file the suit and to take the possession from the defendant; that only partition suit is maintainable against the other co-sharers. Refuting the remaining assertions in the plaint, the defendant prayed for dismissal of the suit. Since the defendant had expired during pendency of the suit, his legal representatives were brought on file. The plaintiff had filed replication controverting the allegations in the written statement whereas reiterating the averments in the plaint. On the pleadings of the parties, following issues were framed:

(3.) If so, at which rate and from which period to which period? OPP. Both the parties were afforded adequate opportunities to lead their evidence. After hearing the learned counsel for the parties, the trial Court decided issues No.1, 1(A) and 1(B) in favour of the defendant and against the plaintiff, issues No.2 and 3 in favour of the plaintiff and against the defendants, issue No.6 in favour of the plaintiff and against the defendants, issues No.4, 5, 7, 8, 9 and 11 against the defendants, issue No.10 in favour of the defendants and against the plaintiff. Resultantly vide judgment and decree dated 8.10.2010 the suit of the plaintiff was dismissed by the trial Court with costs. Feeling aggrieved by the said judgment and decree, the plaintiff filed an appeal in the Court of District Judge, Kurukshetra, which was assigned to Additional District Judge, Kurukshetra, who vide judgment and decree dated 25.1.2013 accepted the appeal partly observing that entries in favour of respondent/defendant as 'Gair Marusi' in the jamabandi for the year 1969-70 onwards are illegal, null and void and the appellant-plaintiff is also entitled to the possession of the land measuring 10 kanals 2 marlas. Being dissatisfied with the judgment and decree passed by Additional District Judge, Kurukshetra, the legal representatives of the defendant have filed the present regular second appeal before this Court, notice of which was issued to the respondent-plaintiff, who has appeared through counsel.