MOGI NAND Vs. PREM SINGH

JUDGEMENT

(1.) This is the defendants second appeal against the judgment and decree of the learned Additional District Judge, reversing the judgment and decree passed by the learned trial Court. The appellant and proforma respondents were the defendants before the learned trial Court. The suit, out of which the present appeal arises, was filed by the respondent Shri Kishan Singh alias Kishnu, in the Court of the learned Senior Sub Judge, Sirmaur in the year 1988. A decree of declaration that the plaintiff is the owner to the extent of half share of Land comprised in Khata No. 6 Khatoni No. 9, Knasra No. 367/338, 358 and 359 and khata Khatoni No. 3/4 khasra 347 and 352 and in exclusive possession of khasra No. 367/338/1 measuring 11 -4 bighas as per tatima attached and khasra No. 359 in mauza Bathivali, Patti Bathivali, Tehsil Pachhad, Distt. Sirmaur (H.P.), enumerated in jamabandi for the year 1981 -82 and 1972 -73 respectively; decree of declaration that all revenue records and transaction whatsoever in respect of the suit land are void, illegal and not binding upon the interests of the plaintiff, was prayed for. The plaintiff also sought a decree for permanent prohibitory injunction restraining defendant No.1 from* interfering in possession of the land was also sought.

(2.) The brief facts as pleaded before the learned trial Court by the plaintiff are that defendant No.1 and the plaintiff are real brothers and occupancy tenants over the suit and comprised in Khewat No.3, khatauni No.5, Khara Nos. 347, 358, 359 and non occupancy tenant over khasra No. 352 and 357 in mauza Bathivali, Pargna Givivar, Tehsil Pachhad, as per Jamabandi for the year 1958 -59. The plaintiff alleges that he and defendant No. 2 used to live with defendant No.1 jointly as a joint family till the year 1970. All cultivation and other works were done jointly by them. Defendant No.1 being the elder member, used to do the work as the head of the family after the death of the father of the plaintiff and defendant. The produce of the land was used for the entire family by the brothers.

(3.) During the year 1960 -62, the ownership of the land in dispute was given to the plaintiff and defendant No.1 recorded in Roznamcha Rapat No. 275, dated .13.9.1960 and Rapat No. 377 dated 31.8.1962. The plaintiff has submitted that after the Rapats entered in the Rojnamcha Wakyati, mutations are entered in the register. However, the Assistant Collector 1st Grade committed an error by omitting the name of the plaintiff from the column of ownership, and defendant No.1 was described as the sole and the only owner of the land. This, according to the plaintiff, is a fraud played upon him or was a mistake Committed by the Assistant Collector 1st Grade. Up to 1970, both the brothers were joint. A family settlement was made between the plaintiff and defendant No.1 and a part of khasra Nos. 367/338, measuring 11.4 bighas and khasra No. 359, measuring 3.1 bighas, in all measuring 14.5 bighas was given to the plaintiff. He is in possession of this land personally and through his son Surinder Singh who is also his General Power of Attorney.