HIMA RAM Vs. DHYAN DASSI & OTHERS

JUDGEMENT

(1.) Instant Regular Second Appeal filed under Section 100 of the Code of Civil procedure is directed against the judgment and decree dated 8.8.2007, passed by learned Additional District Judge, Mandi (camp at Karsog), District Mandi, H.P., whereby the judgment and decree dated 17.9.2004, passed by learned Civil Judge (Junior Division) Karsog in Civil Suit No. 58 of 2003 has been reserved and set-aside.

(2.) The brief facts of the case as emerged from the plaint are that the defendant and proforma-defendants were recorded joint owners in possession of the land comprised under khata/ khatauni No.100/161 to 168, khara Nos. 245, 264, 331, 297, 298, 238, 281, 292, 389, 666, 760, 230, 258, 290, 291, 853, 223, 229, 283, 390, 741, 775, 757, kita-25, measuring 10-18-9 bighas, situated in muhal Bhanera/462, Tehsil Karsog, District Mandi, as entered in jamabandi for the year, 2000-2001. It is averred in the plaint that proforma-defendant No.7, Smt. Surtu Devi vide registered sale deed No.258, dated 15.5.1998, sold khasra Nos. 234, 238, 229, kita-3,measuring 0-18-14 bighas to the plaintiffs and handed over the possession to the plaintiffs and since then plaintiffs are owner in possession of khasra Nos. 234, 238 and 229. It is also averred in the plaint that the defendant moved an application before the Assistant Collector Ist Grade, Karsog for partition proceedings in the year, 2000, which was allowed vide order dated 3.11.2002, whereby the land comprised khasra Nos.231, 234/1, 238, measuring 0-12-13 bighas was illegally allotted to the defendant. It is also averred in the plaint that on 7.7.2003, Revenue staff alongwith the police came to the spot and forcibly delivered the possession of khasra No.234/1, measuring 0- 6-6 bighas and khasra No.238, measuring 0-4-11 bighas to the defendant, whereas the plaintiffs were owner in possession of land bearing khasra No.234 and 238, which was purchased by them from Smt. Surtu, proformadefendant. It is further averred in the plaint that the plaintiffs informed the revenue staff that they have not been impleaded as respondents in the partition proceedings and by virtue of registered sale deed, the aforesaid plaintiffs have purchased the total khasra No.234 measuring 0-10-4 bighas from Surtu and proforma defendant and plaintiffs are in possession of total khasra No.234 but inspite of that revenue staff with the help of the police delivered the possession of khasra No.234/1, measuring 0-6-6 bighas to the defendant. It is averred in the plaint that by virtue of sale deed, plaintiffs have become owner of total khasa No.234 and learned Assistant Collector 1st Grade Karsog has wrongly allotted khasra No.234/1, measuring 0-6-6 bighas and khasra No.234 to the defendant which is in possession of the plaintiffs since 15.5.1998 when they purchased the land from Surtu and hence delivery of possession in favour of the defendant regarding khasra No.234/1 is quit illegal and the same is liable to declared as null and void. It is averred in the plaint that the defendant was asked by the plaintiffs time and again to hand over the possession of khasra No.234/1 to the plaintiffs but in vain. The proforma-defendants No.2 to 12 have been recorded as co-sharers in the suit land and they have been impleaded as proforma defendants otherwise no relief was claimed against them. The cause of action accrued to the plaintiffs on 7.7.2003, when the plaintiffs came to know that khasra Nos. 234/1 has been allotted to the defendant and on 15.7.2003, when the defendant forcibly took the possession of the suit land and right to sue also accrued on 28.8.2003, when the defendant finally refused to hand over the possession of the suit land to the plaintiff.

(3.) Defendant, by way of filing written statement raised various preliminary objections qua cause of action, maintainability and limitation. Defendant further stated that plaintiff has not come with clean hands and suit is not properly valued for the purpose of court fee. On merits, defendant admitted that the possession of replying defendant over a particular khatauni No. 159 has also been held by the Court in previous suit bearing No.6 of 1998, decided on 27.9.2009 filed by defendant No.1 against predecessor-in interest of plaintiff and proforma defendant No.7.It is submitted that the replying defendant had instituted a civil suit bearing No.6/1998 for permanent prohibitory injunction and that suit was decreed with cost on dated 27.9.1999 but predecessor of the plaintiff i.e. proforma defendant No.7 never disclosed this fact neither in their written statement nor in their depositions that the proforma defendant No.7 Smt. Surtu Devi has ever sold any piece of land to the plaintiffs. Had there been any sale deed, the predecessor of the plaintiff as well as proforma defendant No.7 could have disclosed this fact before the Court in previous suit. Defendant further stated that if at all, if there is any sale deed even then the land was recorded joint land in the revenue record and any cosharer, whatsoever could sell the land from the joint holding to the extent of his/her share and not a particular khasra number. Defendant further pleaded that had there been any sale deed, mutation could have been attested in the light of the alleged sale deed. Defendant further stated that it is wrong to allege that the plaintiffs are in exclusive possession over khasra No.234, but in fact the possession of the replying defendant has already been established by the law of Court in the previous suit. However, defendant submitted that in order to develop the land, he instituted partition proceedings to get his share separated from the joint holding of the other cosharers. Defendant further claimed that since he was in possession over the major portion of khasra No.234, Assistant Collector 1st Grade has rightly divided khasra No.234 in two parts each holding 0-6-6 and 0-4-4 bighas and in partition proceedings defendant has been allotted khasra Nos. 231, 234/1 and 238, Kita-3, measuring 0-12- 13 bighas qua his share. Defendant further contended that the instrument of partition has also been prepared and also given in effect in the revenue record. Proforma defendants have also admitted this partition proceeding as correct and their statements were also recorded to this effect by the Assistant Collector 1st Grade, Karsog. It is further averred that the order of Assistant Collector 1st Grade, Karsog is in accordance with the law and there is no illegality in the order of partition and the allotment of khasra No.234/1, measuring 0-0-6 bighas is correct as per the rules and any sale transaction between plaintiffs and proforma defendant No.7 is wrong, illegal and therefore denied. In the aforesaid background, defendant prayed for the dismissal of the suit.