MUNSHI RAM Vs. ROSHNI AND ORS.

JUDGEMENT

(1.) DECEASED plaintiff Munshi Ram was in second appeal before this Court. He was aggrieved by the judgment and decree under challenge in the present appeal, passed by learned District Judge, Bilaspur, whereby on reversal of the judgment and decree passed in case No. 101/1 of 89 on 27.02.1991 by learned Sub Judge, Bilaspur has dismissed the appeal. The parties were joint owner in possession of the land situated in village Kandraur Pargana and Tehsil Sadar, District Bilaspur and in village Batoli, Pargana Bahardarpur, Tehsil Sadar, District Bilaspur.

(2.) THE parties except for defendant No. 6 Santu, have their respective houses in both villages i.e. Kandraur and at Batoli. Defendant No. 6, who as a matter of fact, was tenant of the plaintiff and defendants No. 1 to 5 is resident of village Batoli. Defendants No. 1, 4 and 5 allegedly had not been cultivating the land belonging to them at village Batoli. It is the plaintiff and defendant No. 3, who used to cultivate the entire land in village Batoli because defendant No. 2 had served Indian Army for some time. The remaining defendants No. 1, 4 and 5 used to reside in village Kandraur and also to cultivate the land situated in that village. The distance between village Kandraur and Batoli is stated to be 20 kilometers. The suit land is measuring 9 -17 bighas comprised in Khata No. 4 Khatoni No. 4 Khasra No. 117 situated in village Batoli, Pargana Bahadarpur, Tehsil Sadar, District Bilaspur. During the consolidation operation in the year 1967 -68, carried out in village Kandraur, the defendants thought it proper that the plaintiff should transfer his land in village Kandraur in lieu of the suit land. The plaintiff agreed thereto. The parties entered into a compromise, which was reduced into writing by the Consolidation Officer on 10.01.1970. Consequently, the plaintiff relinquished 1/3 share of his holdings in village Kandraur in favour of defendants No. 1 to 5 and in lieu thereof, the said defendants had also relinquished their share in the suit land bearing Khasra No. 117 known as 'Khad Burdi Baramadgi' measuring 9 -17 bighas and in this way the plaintiff became exclusive owner in possession of the suit land. As regards, defendant No. 6 Santu, the tenant, it was agreed upon that he will be the tenant exclusively under defendants No. 1 to 5 and the land under tenancy will be adjusted from their share without affecting the suit land, which as per compromise had to remain in exclusive ownership and possession of the plaintiff. The Consolidation Officer had recorded the statements of the parties to this effect and also passed an order regarding compromise on 10.01.1970. The 1/3 plaintiff's share in the land situated at village Kandraur was, therefore, transferred in the names of defendants No. 1 to 5. Since village Batoli was not under consolidation, therefore, the compromise could not be given effect qua suit land situated in that village at that time. Defendant No. 1, Bajiru with an ulterior motive and malafide intention moved an application before the Assistant Collector 1st Grade, Sadar for the partition of the land including the suit land belonging to the parties in village Batoli against the plaintiff and defendants No. 2 to 6. Cross appeals preferred by the plaintiff against defendant Santu etc., and by said Santu against the plaintiff and others were pending disposal at that time and as such, the rights of the parties as regards, the status of said Santu as non -occupancy tenant was to be decided in those appeals. Defendant No. 1, Bajiru was also party in those appeals. Any how, both appeals were decided by learned District Judge. It is thereafter, defendants No. 2, 4 and 5 also joined defendant No. 3 as applicant in the application, being preferred for partition of the land in village Batoli. The Assistant Collector 1st Grade allowed the application. The order passed by the Assistant Collector 1st Grade on 21.05.1983 and affirmed in appeal by the Collector, Sadar, Sub -Division, Bilaspur on 29.09.1984 and further by the Divisional Commissioner vide order dated 25.10.1984 passed in a Revision Petition, the plaintiff preferred. It is in this backdrop, the plaintiff sought the declaration to the effect that he is owner in possession and that the order dated 21.5.1983 of the Assistant Collector 1st Grade affirmed in appeal by the Collector Sub -Division, Sadar, District Bilaspur and by the Divisional Commissioner are wrong, illegal and without any jurisdiction, hence not binding on him with a decree of permanent prohibitory injunction, restraining the defendants from causing interference over the suit land.

(3.) THE defendants when entered appearance had contested the suit. They raised several objections in preliminary and on merits averred that being co -owners, they have every right to get the suit land partitioned. On the completion of the pleadings, learned trial Court has framed the following issues: