MADAN SINGH Vs. RATA

JUDGEMENT

(1.) This is a second appeal filed by the appellants Madan Singh and Smt. Lahar Kunwar, against the order of the Revenue Appellate Authority, Udaipur, dated 22 -12 -1965.

(2.) The facts of the case, in brief, are that the respondents filed a suit on 26 -7 61 for declaration as khatedars on field Nos. 765 and 766 measuring in all 6 bighas and 4 biswas, together with a well viz. Maahdia, located in village Fhila, Tehsil Girwa, District Udaipur, in the court of the Assistant Collector, Udaipur. The case was tried in the court of the Sub -Divisional Officer, who on 30 -6 -1965 decreed the suit declaring them as khatedars and ordering restoration of possession to them, as also the profits of the cultivation during the interval. An appeal filed in the court of the Revenue Appellate Authority met with no success, and hence this second appeal.

(3.) The averment in the plaint was that the respondent -plaintiffs were the Khatedars of the land in dispute, but on 26 -9 -1949, the appellant Madan Singh made an application under sec. 145 of the Criminal Procedure Code in the court of the Extra Magistrate, Salumber, whereupon the land in dispute was attached and entrusted to a receiver. The land was still under attachment of the Court. The income from this land was being deposited with the Extra Magistrate, Salumber, and thereafter with the Naib Tehsildar. It was further alleged in the plaint that during this attachment settlement proceedings took place, and the appellants collusively got this land entered in the name of Mst. Raj Kumar, mother of Madan Singh, appellant, and Mst. Lahar Kunwar, appellant, as Havala Khudkasht. The respondents, therefore, considered it necessary to ask for a declaration of their right as khatedars. The appellant defendants resisted this suit on the ground that the respondents were not the khatedars of the land in dispute; that the entries in the settlement record had been duly made in their favour; the respondents could not therefore, bring the suit. It was further urged that Madan Singh, appellant, was not a party in proceedings under sec. 145 Cr.P.C. It was also alleged that Kana, the father of the respondents 3 to 5, and appellant Lakhma filed a declaratory suit in the court of the Assistant Collector, which was dismissed on 9 -10 -1957. The present suit was barred on the principle of res judicata. It was also alleged that only half of the portion of the land was in the Bapi of Kana, the father of the plaintiff - respondents, but he had surrendered it in Smt. 1975 Jeth Sudi 9 in favour of the appellants.