NANAK SINGH Vs. MAST RAM

JUDGEMENT

(1.) The present Regular Second Appeal arises out of the judgment as passed by the learned Presiding Officer Fast Track Court, Mandi, District Mandi, H.P. in Civil Appeal No. 102 of 2009, dt. 16/3/2011, whereby the appeal filed by the appellant/defendant was dismissed and the judgment and decree as passed by the learned Civil Judge (Senior Division), Court No.2, Mandi, District Mandi, H.P. dated 31.707.2009 was affirmed.

(2.) The facts necessary for adjudication are that the present respondent No.1/plaintiff filed a suit for declaration and injunction in the court of learned Civil Judge (Senior Division) Court No.2, Mandi, District Mandi. It was averred in the plaint that the land comprised in Khewat/Khatauni No. 171 min/200 min, khasra No.490, measuring 1-0-8 bighas situated in village Ner,H. No.222, Illaqa Balh, Tehsil Sadar, District Mandi, H.P. (hereinafter referred to as the suit land) was owned by Smt. Rajender Kaur w/o Sh. Gopal Singh, who was the mother of defendant No.1 Sh. Nanak Singh. It was averred in the plaint that out of the suit land,the land measuring 0-5-5 bighas was purchased by defendant No.2 Sh. Jounga Ram from Smt. Rajender Kaur and mutation to that effect was also attested in favour of defendant No.2 on 31/7/1986 It was averred that defendant No.2 purchased land measuring 0-5-5 bighas out of khasra No.490 on the basis of tatima which has been shown as khasra No.490/1. It was stated in the plaint that plaintiff also purchased land measuring 0-8-0 bighas from Smt. Rajender Kaur vide registered sale deed dt. 5/11/1986, on the basis of the spot tatima out of khasra No.490 which has been described as khasra No.490/2 in the spot map which was attached with the registered sale deed. The original copy of the sale deed was also appended with t e plaint. It was averred that while preparing spot map of khasra No. 490/1, 490/2 and 490/3, the dimensions of the area in question i.e length and width of the area have wrongly been shown and the length and breadth as shown in tatima did not tally with actual area which has been purchased by the plaintiff from Smt. Rajender Kaur, the predecessor in interest of defendant No.1.

(3.) It was averred in the plaint that the dimensions of tatima of khasra No. 490/1, exceeded to the actual area of the land purchased by defendant No.2. The area of land described as khasra No.490/2 ought to have been 0-8-0 bighas but on calculation on the basis of tatima attached with sale deed this area was found to be 0/4/16 bighas. Therefore, on account of preparation of wrong revenue record/tatima the plaintiff is suffering loss of 0-3-4 bighas of land on the spot. The plaintiff is in possession of 0-8-0 bighas of land. It was stated that plaintiff is in peaceful possession of the land measuring 0-8-0 bighas and on the basis of wrong preparation of tatima, the defendants are interfering in the peaceful possession and they are also trying to disturb the possession of the plaintiff. It was prayed that the tatima of the suit land attached with the sale deed dt. 5/11/1986 showing the dimensions of khasra No. 490/1, 490/2 and 490/3 be declared as null and void and the tatima attached with the mutation may also be declared null and void and the spot map may be declared liable to be corrected so that actual area of the land purchased by the plaintiff may tally with the area shown in the tatima and on the spot. Further decree of Permanent Prohibitory Injunction was sought by the plaintiff and in the alternate it was prayed that in case, defendants succeeded in dispossessing the plaintiff either by raising the construction beyond their share which may prove to be an encroachment over khasra No.1065/490, the same may be ordered to be demolished and the plaintiff may be delivered vacant possession of the same by passing a decree for possession.