Decided on June 20,1950

Raghbir Singh And Anr. Respondents


Harnam Singh, J. - (1.) HAR Kishan appeals under Section 100, Code of Civil Procedure, 1908, from the decree passed by the District Judge, Hissar, in civil Appeal No. 32 -H of 1947 on 5 -2 -1948.
(2.) THE point in dispute in the present proceedings is whether the decree of the lower appellate Court giving possession of the plot. A B C D to the Plaintiffs can be sustained on the conditions of the wajib -ul -arz prepared in the settlement of 1890 -91. Mr. Jagan Nath Seth contends that inasmuch as the trial Court found issue 2 in favour of the Defendant -Appellant the lower appellate Court was in error in decreeing possession of the plot A B C D without upsetting the finding reached by the trial Court on issue 2. Now, the trial Court found on issue 2 that inasmuch as the Plaintiffs admitted that the site A B C D was previously in possession of the Defendant the latter was entitled under the conditions of the wajib -ul -arz, Ex. P -4, to build as of right on the plot A B C D. In allowing the appeal the lower appellate Court said : As Defendant has made constructions contrary to the object and purpose for which his ancestors wore granted this vacant site he is not entitled to the possession thereof. Clearly there is no force in the contention raised.
(3.) THE question that remains for consideration is weather the Defendant was entitled to build the kotha in question under the conditions of the wajib -ul -arz. Condition No. 7 of the wajib -ul -arz prepared in the settlement of 1890 -91 reads : The ownership of the site under abadi vests in the proprietors. A non -proprietor can sell the malba provided the value of that malba exceeds Rs. 20. Every person can extend or alter the kotha kham existing on the site in his possession, but a non -proprietor cannot build pacca building without the consent of the proprietors. No person can build on the vacant site pukh a house or kham house without the consent of the proprietors....;

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