BACHH RAJ Vs. SUNDER MAL

JUDGEMENT

(1.) THIS is a defendant's second appeal against the judgment and decree of the district Judge, Pali, dated 31st March, 1955. The plaintiff-respondents have also filed cross-objections. They initially came up before a Single Judge of this Court who after hearing the learned counsel for the parties, considered that an important point called for determination in the appeal, namely, whether under the facts and circumstances of this case the patta Ex. P-l was required to be registered under the provisions of the Marwar Patta Ordinance. He consequently referred this point to a larger Bench. The matter having come before a Division Bench of this Court it was ordered on 25th of August, 1961 that the whole case may be referred to the larger Bench. The Single Judge thereafter, on 18th November, 1961, referred the whole case to the Division Bench and this is how the matter has come before us.

(2.) THE facts giving rise to the appeal may be briefly stated as follows: achaldas, who is now dead and is represented by the respondents, his sons Sundermal, Vimalraj and grandson Ugamraj, the latter two minors through their next friend Achaldas of village Khod, instituted a suit in the court of the Judicial Superintendent, Sojat, against the appellant bachhraj for possession of a piece of land situated in village Khod shown as "abcd" in the plan submitted with the plaint, and for mesne profits amounting to Rs. 14/- at the rate of rupee 1/- per month. The plaintiffs' case was that they bad obtained patta Ex. P-l of a land from Thikana khod on 20th August, 1944 for Rs. 401/- for an area measuring 20' north-south and 9' east-west. That on a part of the land obtained by the plaintiffs from the Thikana the defendant had already constructed a latrine and an 'ordi' in the samvat years 1994 and 1998 respectively and that the land covered by the 'ordi' and the latrine was 14' north to south and 9' east to west. According to the plaintiff-respondents, the defendant's possession over the land covered by latrine and the ordi was without right and constituted trespass and, therefore, the plaintiffs were entitled to a decree for possession and also to a decree for mesne-profits. They, therefore, prayed for a decree for the possession of the land 14' x 9' covered by the latrine and the ordi. They also claimed Rs. 14/as mesne profits. It may also be noted here that Thikana Khod was also impleaded as a defendant and the plaintiffs claimed an alternative relief against the thikana praying that in case the plaintiffs' suit for possession is not decreed, they should be awarded a decree for damages against the thinkana for an amount of Rs. 1,100/ -.

(3.) THE defendant-appellant Bachhraj opposed the plaintiffs' suit. He did not admit the patta Ex. P-1 dated 20th August, 1944 and further pleaded that the thikana had no authority to issue patta to the plaintiff-respondents. His case was that his ancestors had already obtained patta Ex. D-1 dated Baisakh sudi 5 Samvat 1958 and another patta Ex. D-2 dated Kartik sudi 13 Samvat 1948 and that these pattas covered the land claimed by the plaintiffs under the patta Ex. P-1. The defendant also alleged that the patta Ex. P-1 covered only the land under the ordi but did not cover the portion covered by the latrine as also some open land between the latrine and ordi. The defendants also pleaded that prior to the present suit, the plaintiffs had filed a suit against him for the cancellation of pattas Ex. D-2 and the removal of the ordi and that that suit had been dismissed by the trial court and the dismissal was upheld by the Chief Court of the former Jodhpur State and consequently the present suit of the plaintiffs was barred by the principle of res judicata. It was also mentioned in the written statement by the defendants that the land being already in his possession, the thikana was not justified in issuing the patta Ex. P-1 to the plaintiff-respondents. An averment was also made that the patta was issued by the thikana without following a proper and just procedure inasmuch as no proclamation inviting objections was issued before the grant of the patta,