LAXMICHAND Vs. CHAINMAL

JUDGEMENT

(1.) BY this judgment dated January 21, 1961 the Civil Judge of Sirohi has allowed the appeal of defendant Chainmal and dismissed the suit of the plaintiffs, and that has given rise to the present second appeal.

(2.) EVEN though the suit in the present case was instituted on July 22, 1958, the parties have been fighting for their respective claims for a period of over 20 years. The reason is that while the plaintiffs have made the claim that their father Jalamchand purchased the suit land bearing survey No. 1990, and the other piece of land bearing survey No. 1939, in Sirohi town, from Samarthmal, father of defendants Lakhpatraj, Dalpatraj and Sajjanraj by sale-deed Ex. 1 dated July 22, 1946, and took possession thereunder, defendant Chainmal has been resisting the claim to the suit land (No. 1990) on the ground that it belonged to his ancestor Dhanna Ramji under "sanad" Ex. A5 dated July 25,1897. The dispute arose because after purchasing the land from Samarthmal, Jalamchand filed an application the same day for the issue of a "sanad" in accordance with the provisions of the Sirohi State Building Sites Sanad Rules, 1935. A notice inviting objections was therefore issued in the State Gazette dated August 1, 1946, by the concerned Tehsildar, and Chainmal filed an objection that he was the owner of survey No. 1990 and so its "sanad" should not be issued to Jalamchand. The Tehsildar rejected the objection and Chainmal preferred an appeal to the Revenue Commissioner who remanded the case for further enquiry. The Tehsildar then made an order on June 23, 1952 asking the plaintiffs to have the controversy decided by a civil court. On appeal, the Collector confirmed the order of the Tehsildar and so the matter was taken to the Additional Commissioner. He allowed the appeal, framed certain points for determination and remitted the case for a fresh decision by the Tehsildar. On December 31, 1954 the Tehsildar made order Ex. 9 directing the issue of the "sanad" to Jalamchand as he took the view that Chainmal's "sanad" Ex. A. 5 had ceased to be operative because of the issue of a "sanad" in favour of Samarathmal on August 18, 1916. Chainmal filed an appeal to the Collector, but it was dismissed on March 25, 1958. The plaintiffs, however, instituted the present suit for possession on July 22, 1958 because, according to them, defendant Chainmal encroached on a portion of the land covered by survey No. 1990 on May 24, 1952. In the meantime, Chainmal preferred an appeal to the Additional Commissioner against the aforesaid decision of the Collector, but it was dismissed on April 30, 1964. This is how the plaintiffs have succeeded in obtaining a "sanad" for the suit plot of land on March 31, 1964, but have filed the suit for possession on account of the alleged encroachment. These facts are not in dispute.

(3.) AS the learned counsel for the parties have agreed that the fate of the case would depend on the decision in regard to the validity of the two "sanads", and as it has been held that "sanad" Ex. 2 is the only legal document of title, the appeal is allowed, the impugned judgment and decree of the lower appellate court are set aside and the decree of the trial court restored. The cross-objection fails and is dismissed. In the circumstances of the case, the parties are left to bear their own costs throughout. .