BESAR Vs. SHER SINGH

JUDGEMENT

(1.) THIS Regular Second Appeal is directed against the judgement dated 24.5.2000 passed by the learned District Judge, Mandi in Civil Appeal No. 19 of 1995, whereby he set-aside the judgement and decree of the Sub Divisional Collector, Jogindernagar and decreed the suit of the plaintiff.

(2.) BRIEFLY stated the facts of the case are that Puran Chand predecessor-in-interest of respondents No. 1 to 7 filed a suit against the present appellants and the proforma respondents. According to the plaintiff, the suit land measuring 51-17-90 bighas is situate in Mohal Bah, Tehsil Jogindernagar, District Mandi. In the revenue record ? share is recorded in the name of the plaintiff and proforma defendants No. 3 and 4 and half share in the name of defendants No. 1 and 2. The contention of the plaintiff was that the suit land is owned and possessed by the plaintiff and proforma defendants No. 3 and 4 to the extent of ? share and the remaining ? share of the suit land is owned and possessed by defendants No. 1 and 2. It was also pleaded that there was some dispute regarding the demarcation of joint holdings of the plaintiff and proforma defendants and therefore proforma defendants No. 3 and 4 filed partition proceedings in 1st the Court of the Assistant Collector Grade, Jogindernagar and these proceedings culminated in an order of partition of their respective shares. The defendants No. 1 and 2 aggrieved by the order of partition preferred an appeal to the Sub Divisional Collector, Jogindernagar who vide his order dated 15.5.1990 held that a question of title was involved and directed that before partition is effected the question of title be got settled. The plaintiff claimed that this order is totally erroneous and illegal. The plaintiff contended that the land was joint and no family partition had taken place and therefore prayed that the plaintiff and proforma defendants No. 3 and 4 be declared to be owners in possession of ? share of the suit land and defendants No. 1 and 2 be declared to be owners of the remaining ? share. It was also prayed that the order of the Collector be declared null and void.

(3.) THE learned trial Court decided issue No.1 partly in favour of the plaintiff and defendants No. 3 and 4 and it was found that they were recorded as owners but were not in possession of the suit land. Issue No.2 was decided against the plaintiff. Issue No.5 against the defendant and issues No. 3, 4, 6, 7, 7(a) and 7(b) in favour of the defendants and therefore, the suit was dismissed. Appeal was filed by the legal heirs of the plaintiff which appeal has been allowed by the learned lower Appellate Court. THE learned lower Appellate Court came to the conclusion that since the mutation of ownership sanctioned in favour of Jindu had not been assailed, the defendants could not challenge the sale in his favour. He further went on to hold that since the defendants had not set up a case that they had not surrendered their occupancy rights, without getting the mutation order set-aside, it cannot be said that the subsequent entries in the record of the rights describing Jindu as exclusive owner of the property are null and void. Hence, the present appeal.