DILBHAG SINGH Vs. HARI RAM

JUDGEMENT

(1.) The present appeal is directed against the judgment and decree dtd. 1/10/2009, passed by the learned Additional District Judge, Fast Track Court, Una, District Una, H.P, vide which, the appeal filed by the respondent no.1 (defendant no.1 before the learned Trial Court) was allowed and judgment and decree passed by the learned Civil Judge (Jr.Divn.), Court No.1, Amb, District Una, H.P. was set aside. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).

(2.) Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking a declaration that they are owners in possession of the land comprised in Khewat No.42, Khatauni No.73, Khasra No. 360, measuring 0 -18-47 Hectares to the extent of 7/8th share, situated in village Mughal, Tehsil Amb, District Una, H.P., as per Jamabandi for the year 1999-2000 (hereinafter referred to as the suit land). The entries made in the revenue papers in the name of defendant no.1, as owner in possession, and mutationa No.123 dtd. 16/11/1981 sanctioned by AC 1st Grade Amb are illegal, null and void. A consequential relief of permanent prohibitory injunction for restraining defendant no.1, from forcibly ousting the plaintiffs, from the suit land, changing its nature, alienating or disposing of the same was also sought .It was pleaded that the land measuring 4 Kanal 16 Marla comprised in Khewat No.1 min, Khatauni No. 4 min, Khasra Nos.76 and 79, as entered in the Jamabandi for the year 1967-68, situated in Village Mughal, Tehsil Amb, District Una, H.P. was jointly owned and possessed by Mehar Chand, the predecessor-in-interest of defendants No.2 to 6 to the extent of 1/8th share and one Badhawa to the extent of 7/8th share. The plaintiffs purchased 7/8 share from Badhawa in the land measuring Khasra nos. 76 and 79 measuring 4 Kanal 16 Marla, situated in village Mughal, Tehsil Amb, District Una, H.P. vide registered deed No. 221, on 30/5/1973. A mutation regarding the sale was attested and sanctioned on 27/3/1984. Kamla Devi, defendant no.6 is the real sister of defendant no.1. Mehar Chand was the husband of Kamla Devi. Defendant No.1 in connivance with Mehar Chand and the revenue officials got his name recorded as Gair Maroosi (non-occupancy tenant) in the column of cultivation behind the back of the plaintiffs without any notice to them. The entry was incorporated in the Jamabandi for the years 1978-79 without any order from the competent authority. Defendant No.1 was never induced as a tenant by the plaintiff in the suit land. The Khasra No.76 and 79 were converted into new Khasra No.421 during the settlement. Khasra No. 421 was converted into the new Khasra No. 360, during the consolidation. Defendant No.1 started threatening to oust the plaintiffs from the suit land, changing the nature of the suit land and alienating the same. The plaintiffs checked the revenue record and found that mutation No.123, was sanctioned in favour of the defendant no.1. The plaintiffs requested defendant No.1 to admit their claim and not to interfere with the suit land but in vain, hence, the suit was filed to seek relief mentioned above.

(3.) The suit was opposed by defendant no.1 by filing a written statement taking preliminary objections regarding lack of maintainability, jurisdiction and locus standi,the plaintiffs being estopped by their act and conduct to file the present suit and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that land measuring 96 Kanal 4 Marla was previously owned by Mehar Chand to the extent of 1 share and Saudagar to the extent of 7 shares. The allotment in favour of Saudagar was cancelled vide rapat no. 218, dtd. 14/2/1973. The allotment was made in favour of one Badawa vide Rapat no.312, on 12. 04.1973. Badawa became owner to the extent of 7 shares. Mehar Chand was in exclusive Hissedari possession of land measuring 11 Kanal 9 Marla bearing Khasra Nos. 75, 76, 76/1 min, 79 and 86 out of Khewat No. 1, Khasra No. 78/1 min measuring 11 Kanals 9 Marla out of Khewat No.1 and Khasra no.78/1 min measuring 11 Marla, out of Khewat No.2. Thus, Mehar Chand was in exclusive hissedari possession to the extent of his share. Mehar Chand inducted defendant no.1, as a non-occupancy tenant, over land comprised in Khasra nos. 76 and 79 measuring 4 Kanals 16 Marla alongwith other land on the payment of rent 'Batai' in June 1966. Defendant No.1 is in possession since Kharif 1966, on the payment of rent 'Batai'. Khasra nos. 76 and 79 were converted into Khasra No.421 during the settlement. The mutation no. 123 was sanctioned in favour of defendant no.1 on 16/11/1981, in presence of the plaintiff in Jalasa Aam regarding the conferment of proprietary rights. The plaintiffs moved an application for separating their shares during the consolidation and the consolidation authorities partitioned the share of the plaintiffs and defendant no.1. Khasra No. 421, was converted into new Khasra No. 360, during the consolidation. The plaintiffs have no right, title or interest in the suit land. It was admitted that plaintiffs have purchased 7/8th shares of Badawa in Khasra Nos. 76 and 79, inter alia. The mutation was sanctioned in their names in the year 1984. Defendant No.1 became the owner after the conferment of proprietary rights in the year 1981. The jurisdiction of the Civil Court is barred to hear and entertain the present suit because of the H.P. Tenancy and Land Reforms Act and H.P. Consolidation of Land Holding Act. Hence, it was prayed that the suit be dismissed.