KHIRI RAM GUPTA Vs. NANALAL J PAREKH

JUDGEMENT

(1.) The property in dispute in lliis case ^ portions of plots 293 and 300 of village fatepur, measuring 78'x 9', as detailed in Schedule C of the plaint. According to the plaintiff, which is a society registered under the Societies Registration Act, 1860 (hereinafter referred to as the Act), these two plots along with plut No. 301 were originally the tenancy lands of two persons, namely, Maheshwar Singh, who has been examined in this case as P.W. 4, and Deonarain Singh (minor), son of Paru Smgh. Subsequently, on 3(j-9-ia4u, it is sam, these two tenants sold to the plaintiff, in the name or defendant No. 3 under a registered deed of sale of the even date the land in dispute and the whole of plot No. 301. The plaintiff has been since then using the land as private one for the convenience of the institutions set up near about the land by the society. The grievance made is that recently its right of exclusive user over tne land in suit as private lane has been challenged by defendants 1 and 2, who are father and son, and who alone have contested the suit. Hence the necessity for a declaration of title and for permanent injunction restraining the defendants from using the land as Kasta, as averred in the plaint.

(2.) It is not denied that in the survey rocord-of-rights these two plots were recorded in the name of Maheshwar Singh and Paru Singh as raiyats. But, there was a note made in the 'Remarks' column in regard to plot No. 300 that it was then in possession of one Nuru Singn, who, as admitted by both the parties, was the father-in-law of Paru Singh. This entry standing by itself prima facie suggests that perhaps Nuru was a sub-tenant in plot No. 300 under the aforesaid two tenants. But, in defence, the case pleaded by the two contesting defendants was as if Nuru was himself a raiyat of plot No. 300, and, therefore, his title as a raiyat in regard to that plot was subsisting. Further, it is claimed that Nuru, as such, sold plot No. 300 to the defendants under a deed of sale dated 7-8-1948. According to the defendants, therefore, the plaintiff did not acquire any title in respect of plot No. 300 under the deed of sale dated 30-9-1940. Lastly, there was also a claim made that, in any view of the matter, the land in dispute was not a private Rasta, but a public Rasta open to the use of everybody in The locality. Then, there was also an objection raised on behaif of the defendants on the question of maintainability or the suit.

(3.) Both the Courts below have concurrently found that (1) the suit as framed is maintainable; (2) the plaintiff has title to the land in dispute; and (3) the disputed land is a private land and not a public one. On these findings, the suit hss been decreed by both the Courts below. The contesting defendants, therefore, have now come up in second appeal.