BEGA Vs. SHADI

JUDGEMENT

(1.) THIS second appeal is directed against the decision of the learn- ed Additional district Judge, Ambala, at Karnal partly modifying the decision of the trial Court decreeing the plaintiffs' suit.

(2.) THE plaintiffs as well as the defendants owned separate khewats of land la village Kachhana, Tehsil Kaithal, Dis-trict Karnai. Besides their khewat lands they also owned shamilat land. This shamilat land was known as "thulla Badhahan'. During the consolidation of holdings in the village the shamilat land was partitioned and it was allotted to the khewatdars along with their separate khewat lands. The plaintiffs allege that the area of shamilat Thulla Badhahan owned by the parties was 1. 318 bighas 14 biswas and out of this the plaintiffs owned three-fourth share and the defendants one-fourth share and that during the consolidation the defendants have wrongly been allotted land measuring 484 bighas 12 biswas out of the shamilat land and the plaintiffs have wrongly been allotted 834 bighas 2 biswas of land. In fact the plaintiffs are entitled to 984 bighas 1/2 biswas of land and the defendants should have been allotted only 329 bighas 131/2 biswas of land. It was with regard to this excess allotment of the shamilat land to the defendants that the present suit was riled. The contention of the plaintiffs prevailed in the Courts below and accordingly the necessary decree was ultimately granted by the learned Additional District Judge.

(3.) IT will be proper at this stage to mention the reason why the defendants were allotted more land by the consolidation authorities. In the earliest settlement the khewat land was held three-fourth and one-fourth by the ancestors of the plaintiffs and the defendants. Out of the plaintiffs' ancestors' holding, an area measuring 13 bighas 19 biswas was taken possession of by the defendants ancestors and ultimately they perfected their title by adverse possession to this area by the year 1921. However, it is clear from the pedigree-table Exhibit P. 44 that in the year 1905-06 the shamilat was recorded as owned by the ancestors of the plaintiffs and the defendants three-fourth and one-fourth. A mutation was entered in the year 1930-31 (Exhibit D. 6), wherein it was clearly indicated that the shamilat was to be shared according to the settlement of Mr. Stowe. This Settlement was of the year 1905-06 as would appear from Exhibit P. 40. It will, therefore, appear that the measure of ownership of the shamilat in Exhibit D. 6 was three-fourth and one-fourth. Later on an attempt was made by the defendants to get this mutation entry corrected. Their case seems to be that in view of the excess in their holding by 13 bighas 19 biswas, they are entitled to the corresponding shamilat of that khewat holding and on that basis they got the mutation Exhibit D. 7 entered in their favour and this is what really furnished the basis for the present suit, though the matter was precipitated when the consolidation of holdings took place. In the background of the above facts the present appeal has to be decided.