GHASEETU Vs. TH SAGARA SINGH

JUDGEMENT

(1.) THIS is a defendants second appeal in a suit filed by the plaintiff for possession of 40 Kanals and 19 marlas of land comprised in survey Nos. 16 and 17 situate in village Top Sherkhanian, Tehsil Jammu.

(2.) THE plaintiffs suit was decreed by the trial court of the City Judge, Jammu, and the decree was upheld in appeal by the District Judge, Jammu. Hence this second appeal to us. This appeal was heard in the first instance by me, but in view of the fact that some important questions of law were involved therein, I referred it to a Division Bench and therefore the appeal has been heard by us. The facts giving rise to the present appeal may be summarised as follows. One Jodh Singh was the original proprietor and male holder of the property in suit. After his death, his property was inherited by his widow, Mst. Dadwal, as a limited owner, it is conceded that Jodh Singhâ„¢s had died long before the coming into force of the Hindu Succession Act. Mst. Dadwal as a limited owner sold the property to Raja Ramchand of Chenani for a consideration of Rs. 1600/ - by virtue of a registered sale deed dated 26th Poh 1992 (Bikrami) i.e. 12 -1 -1936 AD. Thereafter, Mukhtar Singh, the predecessor -in -interest of the plaintiffs and the next reversioner of Jodh Singh filed a suit in 1992 Bikrami i.e. 1936 AD for a declaration that the alienation made by Mst. Dadwal was not binding on them inasmuch as the sale was not justified by any legal necessity and, therefore, the reversioners were entitled to enter into possession on the death of Mst. Dadwal. This suit was decreed on payment of Rs. 500/ - to Raja of Chenani and the sale deed was held void and not binding on the reversioners. The matter came up to the High Court and by its judgment dated 25th Poh 1999 (Bikrami) i.e. 7 -2 -1942 the High Court also confirmed the decree and set aside the alienation. It appears that after purchasing the property Raja of Chenani inducted the defendant appellant Ghaseetu as tenant of the land in question. Meanwhile the Big Landed Estates Abolition Act. 2007, came into force in the year 2007 (Bikrami) and the vendor. Raja Ram Chand did not include the land in dispute in the unit of land selected by him. It may be mentioned here that under the provisions of the Act every proprietor was given the option to select any land he liked within the range of 182 Kanals and surrender the rest to the State. The tenant, Ghaseetu, moved the revenue authorities and mutation was attested in his favour on 28th Jeth 2003 (1951 AD) by the Special Tehsildar. This mutation was contested by Mukhtar Singh, the reversioner, who went up in revision to the Financial Commissioner, who rejected the revision and over -ruled the contention of the reversioner mainly on the ground that as Mst. Dadwal was still alive, the claim of the reversioner was premature because his right of entry to come into possession of the property would arise only after the death of Mst. Dadwal. On these findings the Financial Commissioner rejected the revision. On 27th Phagon 2020 (1963 AD) Mst, Dadwal died and the present plaintiffs who were successors -in -interest of Mukhtar Singh applied to the City Judge. Jammu, for execution of the decree upheld by the High Court. The executing Court, however, rejected the application on the ground that as the decree was purely declaratory in nature, it could not be executed. The application for execution of the decree was accordingly dismissed on 29 -7 -64, and as a result thereof the present suit was filed by the plaintiffs before the City Judge on 3 -1 -65. The suit was contested by the defendants on several grounds In the first place the defendants disputed the fact as to whether or not the plaintiffs were reversioners of Jodh Singh. Secondly, it was stated that the defendant Ghaseetu being a tenant of the land in question had acquired the rights of a protected tenant and was, therefore, not liable to eviction. It was further averred by the defendants that they had acquired title by adverse possession and that the suit was barred by limitation. Finally the defendants contended that the jurisdiction of the civil court was barred by virtue of the provisions of S. 32 of the Big Landed Estates Abolition Act and, therefore, the suit was not maintainable. All the issues of fact framed by the trial court have been considered by it and answered against the defendants. The findings of the City Judge have been affirmed by the D.J. who has given cogent reasons for agreeing with the conclusions arrived at by the learned trial court. It is, therefore, clear that so far as the questions of fact are concerned, they cannot be reopened in second appeal, as these are concurrent findings of fact. We may, however, mention that the following findings have been returned by both the courts below: - (1) That the plaintiffs were the reversioners of Jodh Singh and entitled to succeed to the property after the death of Mst. Dadwal. (2) That the suit was not barred by limitation, and that the defendants did not acquire title by adverse possession. (3) That the jurisdiction of the civil court was not ousted because the revenue courts had no jurisdiction to ignore the decree of the civil court confirmed by the High Court. (4) That defendant 2 was the legal representative of the Raja of Chenani.

(3.) MR . Thakur appearing for the appellant has not challenged the findings of fact arrived at by the courts below but has raised three points of law before us. In the first place he has submitted that in view of the provisions of the Hindu Succession Act, since the widow of Jodh Singh, Mst. Dadwal, was alive when the Hindu Succession Act came into force, she acquired an absolute interest and the alienation made by her in favour of Raja Ramchand before the passing of the Act became perfect and could not be challenged. Secondly it was submitted that as Raja Ram Chand had inducted the defendant as a tenant of the land in suit, Raja Ramchand must be regarded as the proprietor of the land within the provisions of the Big Landed Estates Abolition Act and the mutation made in favour of Ghaseetu would confer absolute title on him and the suit would, therefore, be barred by S. 32 of the Act. Lastly it was contended that Ghaseetu having acquired the rights of a protected tenant was not liable to ejectmnt. Mr. Mahajan appearing for the plaintiffs -respondents has hotly contested all the three contentions raised by Mr. Thakur. We shall now take up each of the contentions raised by Mr. Thakur.