TODAR SINGH Vs. JOGESHWAR

JUDGEMENT

(1.) Major Todar Singh, defendant, feeling aggrieved against the dismissal of his appeal by the District Judge. Gurdaspur and Ex-Officer Additional District Judge. Hoshiarpur. Camp at Dharamsala affirming the judgment and decree of the Senior Sub Judge, Kangra, dated 6-2-1959, had filed the second appeal in the Punjab High Court in 1960. After reorganisation of the State of Punjab, the case was transferred to the Court of Judicial Commissioner. Himachal Pradesh and from there it was transferred to Delhi High Court and now it has come to this Court.

(2.) The facts of the case are that land Khasra No. 1175 min measuring 45 kanals situate in Tika and Mauza Kosri, Tehsil Palampur was recorded as shamilat Tika Kosri. Shri Jogeshwar and Shri Birbal, plaintiffs, who are also the proprietors in the villages, instituted a suit in respect of this land on 18-2-1958 in the Court of the Senior Sub Judge, Kangra at Dharamsala, for joint possession of the land with all the other proprietors of the Tika on the allegations that the defendant No. 1 had taken 5 kanals of land in his exclusive possession as a proprietor and 40 kanals of land had been taken by him in his possession on the basis of a Patta, dated 9-51952, granted by defendant No. 2. It was contended that the land was shamilat, pasture land of the proprietors of Tika Kosri. The plaintiffs, therefore, claimed joint owner ship in their suit. The defendant No. 2 did not put in appearance despite service. Defendant No. 1 resisted the claim pleading, inter alia, that he was legally entitled to occupy the land as he has obtained the land from Raja Saheb (defendant No. 2) and was otherwise too within his rights as a village proprietor to keep the land with him. It was further pleaded that he had effected improvements on the land to the tune of Rupees 1,000/-, and in case of a decree, he was entitled to the costs of improvements. On these pleadings the Court framed the following issues: 1. Was a valid lease given by Raja Saheb. Lamba Goan, to the defendant No. 1? O. D. I. 2. If issue No. 1 is not proved is the defendant entitled to remain in possession of the suit land? O. D. 3. Has the defendant No. I effected any improvements in the land in suit? If so, of what value and is he entitled to reimbursed for them? O. D. I. 4. Is the suit within time? O. P. 5. Are the other co-sharers of Shamilat necessary party? O, D. 6. Relief.

(3.) The trial Court found that Gobind Ram had no legal right exclusively to enjoy the pasture land. The Patta was not found to have been established. The result, therefore, was that the suit was decreed. The defendant therefore, went up in appeal to the District Judge. Hoshiarpur, who (vide judgment and decree, dated 29-4-1960), found that the trial Court was right in holding that the lease had not been, established. The second point canvassed before the learned District Judge was that the appellant, as a village proprietor, was entitled to appropriate the village common land when his total holding of the Shamilat did not exceed his lawful share. The ether proprietors could not evict him unless they prove some special damage. This point was also repelled and the findings on this point recorded by the trial Court were affirmed.