BHEEV SINGH Vs. BANKE SINGH

JUDGEMENT

(1.) BHEEV Singh plaintiff appellant filed this appeal against Banke Singh and 5 other respondents against the judgment and decree of the Additional Commissioner, Jodhpur dated 28. 3. 1963. Briefly, the facts of the case are that Laxman Singh father of the present appellant filed a suit alleging that khasra No. 246, 246/1 and 246/2 consisting of 62 bighas and 9 biswas and situated in village Tiloda Tehsil Jalore popularly known as Bera Gundiwala was his Khudkasht land. He was the jagirdar of that village. The plaintiff got this land cultivated through the system known as Bhawlies. In Smt. 2005 the defendants respondents were cultivating the land as his Bhawlies alongwith his own Bhawli when the settlement operations commenced. The names of the Bhawlies were also unnecessarily entered in the record of rights as khatedars. The land in dispute was continuously cultivated for many years by the plaintiff jagirdar. Out of the defendant-respondents Lal Singh and Bhoor Singh only contested the plaintiff's suit and ex parte proceedings were taken against the rest of the defendants. They pleaded that the 'bera gundiwala' was their ancestral holding and it was constructed by them and they were paying rent to the plaintiff and were in continuous possession of the suit land. The trial court decreed the plaintiff-appellant's suit, but in an appeal preferred by Bhoor Singh alone, the Additional Commissioner, Jodhpur modified the decree of the trial Court by declaring 5/8th of the disputed land as the plaintiff appellant's khudkasht and 3/8th as the khatedari land of the respondents Bhag Singh, Bhoor Singh, Khem Singh, and Lal Singh. He further held that Bhoor Singh appellant could alone file this appeal on his behalf as well as for the benefit of the defendants respondents. It is against this judgment and decree that this second appeal has been filed.

(2.) THE only contention raised by the counsel for the appellant was that the finding of the first appellate Court that Bhoor Singh was in possession of the suit land as tenant was perverse. He was never in possession of the suit land after Smt. 2006 whereas the appellant has proved his possession by khasra girdawari and the statement of other witnesses. From Smt. 2008 onward that he alone was in possession of the suit land. THE counsel for the respondent's reply was that no sufficient evidence on record shows that Bhoor Singh was in possession of the land as tenant in possession and in Smt. 2012 Bhoor Singh's possession was also recorded in the khasra girdawari. THE other witnesses of Bhoor Singh have testified on oath that Bhomia and Purohit cultivated the suit land and Thakur never cultivated.