- (1.) The defendant No. 1 is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiffs for declaration and permanent injunction has been decreed. In short, the plaintiff's filed suit for declaration with consequential relief of permanent injunction in respect of 03 Kanals 08 Marlas of land comprised in Rect. No. 26, Killa No. 9/4 and 10/1, situated in village Dehriwala as per jamabandi for the year 1967-68 alleging therein that 04 Kanals 17 Marias of land bearing old Khasra No. 538 was in joint occupancy tenancy of Munshi & Bantu sons of Boota Singh, Waryam Singh son of Khazan and Gurditta, Gurmukh and Ishar sons of Sujana under the proprietors of village Dehriwala. It was alleged to be in exclusive occupancy tenancy of Munshi & Bantu sons of Boota and Waryam son of Khazan who had mortgaged with possession the said 04 Kanals 17 Marias of land to Pala Singh son of Boota Singh by means of a registered mortgage deed dated 17.07.1911 and had further sold their occupancy rights to Mota Singh son of Boota Singh who is husband of plaintiff No. 1 and father of plaintiff Nos. 2 to 4, by means of a registered sale deed dated 05.07.1943 and the said vendee Mota Singh got it redeemed from the mortgagee and entered into its exclusive possession. The consolidation of holdings took place in the village and the original Khasra No. 538 was converted into new Khasra Nos. 9/4 and 10/1, but the possession remained with Mota Singh. However, due to negligence of the revenue staff, the names of Gurditta, Gurmukh and Ishar sons of Sujana continued to appear in the revenue papers though all of them had died long back and could not have been in possession. It was also alleged that the land was mortgaged in 1911 and from that year onwards the exclusive possession of the vendors of the predecessors-in-interest of the plaintiffs started, the predecessor-in-interest of the plaintiffs had purchased the occupancy rights by way of registered sale deed in the year 1943 and since thereafter, they are in possession as owners not only because of the title but also by way of adverse possession. It was also alleged that defendant No. 1 claims to have got some sale deed executed in his favour from defendant Nos. 2 to 4 which is ineffective on the rights of the plaintiffs. On this premise, declaration was sought about their title and injunction with regard to their possession. In the written statement, the defendants admitted that the land measuring 04 Kanals 17 Marias comprising in old Khasra No. 538 was recorded in joint occupancy tenancy of Munshi & Bantu sons of Boota Singh, Waryam son of Khazan, Gurditta, Gurmukh and Ishar sons of Sujana and they denied that only Munshi, Bantu and Waryam were the actual occupancy tenants. It was also alleged that Munshi, Bantu and Waryam had no right to sell their share as well of occupancy rights, rather it was alleged that 02 (Canals 11 Marias out of the suit land was sold by defendant Nos. 2 to 4 in favour of defendant No. 1 on 11.06.1971 by way of registered sale deed. The plaintiffs filed their replication. On the pleadings of the parties, issues were framed on 13.10.1971, 10.10.1972 and ultimately on 21.07.1982, which are reproduced as under:- 1. Whether Munshi, Bantu and Waryam were the exclusive occupancy tenants of the land comprised in Khasra No. 538? (OPP) 1. a. Whether the suit of the plaintiffs is not maintainable in the present form? (OPP) 1. b. Whether certain unauthorized amendments have been made in the plaint. If so to what effect? (OPP) 1. c. Whether the plaint does not disclose any cause of action against defendants No. 5 to 7. If so, to what effect? (OPP) 2. Whether the plaintiffs predecessor Mota Singh purchased the suit land (i. e. Khasra Number 538) on 05.07.1943? (OPP) 3. Whether the land in suit has been carved out in lieu of Khasra Number 538 during consolidation? (OPP) 4. Whether the plaintiffs and their predecessor in interest acquired the rights of ownership by adverse possession? (OPP) 5. If issue No. 1 and 2 are proved in affirmative, whether the sale in favour of Puran Singh (defendant No. 1) from defendants No. 2 to 4 is valid? (OPP) 5. A. Whether defendant No. 1 is a bona fide purchaser without notice and consideration? (OPD) 6. Relief.
(2.) Both the parties led their respective evidence inasmuch as the plaintiffs examined Surinder Pal (PW1), Mela Ram (PW2), Bantu (PW3), Gian (PW4), Lekh Raj Patwari (PW5) and Charan Dass Attorney through whom the suit was filed (PW6). Besides the oral evidence, the following documents were also tendered:- "Ex. P1 : Original Sale deed dated 07.06.1943. Ex. P2 : Copy of Jamabandi for the year 1912-13. Ex. P3 : Copy of Jamabandi for the year 1916-17. Ex. P4 : Copy of Jamabandi for the year 1924-25. Ex. P5 : Copy of Jamabandi for the year 1920-21. Ex. P6 : Copy of Jamabandi for the year 1960-61. Ex. P7 : Copy of Jamabandi for the year 1967-68. Ex. P8 : Copy of Jamabandi for the year 1953-54. Ex. P9 : Copy of Jamabandi for the year 1945-46. Ex. P10 : KhasraGirdawari from 1968-69 to 1970-71 Ex. P11 : Copy of mutation No. 2014 Ex. P12 : Original mortgage deed dated 17.7.11. Ex. P13 : Jamabandi for the year 1932-33. Ex. P14 : Jamabandi for the year 1928-29. Ex. P1 5 : Khataunipaisaish. Ex. P16 : Copy of mutation No. 2014. Ex. P17 : KhatauniIshtemal. Ex. P1 8 : Khatauni Paisaish. Ex. P1 9 : NaqshaHaqdarwar. Ex. PX : Death certificate in respect of the death of Gurditta son of Sujana. Ex. PY : Certificate of death in respect of Ishar son of Sujana. "
(3.) The defendants examined Darshan Singh (DW1), Samund Singh (DW2), Jagat Singh (DW3), Nand Singh (DW4) and Puran Singh (DW5). After the remand of the case, Samund Singh appeared as RD/DW1 and Puran Singh appeared as RD/DW2 and tendered the following documents:- "Ex. D1 deed dated 11.06.1971, Ex. D2 Copy of Jamabandi for the year 1967-68. Ex. D3 Copy of khasraGirdawari from 1969 to 1971. Ex. D4 Copy of khasraGirdawari from 1968-69 to 1970-71. Ex. RD/DW1/A Receipt-cum-agreement dated 24.4.71. ";