NIRMAL YADAV,J - (1.) THIS is defendant's regular second appeal challenging the concurrent findings recorded by learned Sub Judge IInd Class, Fatehabad and Additional District Judge, Hisar vide their judgments and decrees dated 18.8.1986 and 17.9.1988, respectively, vide which the plaintiff's suit for declaration, that he is owner of the suit land with a consequential relief that defendant be restrained from effecting recovery of decretal amount on the basis of order and decree dated 23.5.1984 passed by Assistant Collector Ist Grade, Fatehabad, in case 'Himat Rai v. Kehar Singh', has been decreed.
(2.) THE facts of the case, in brief, are that land measuring 47 Bighas - 2 Biswas was allotted to one Sunder Singh son of Nihal Singh by virtue of allotment No. 132. The plaintiff/respondent averred that Appellant-Himat Rai in collusion with one Kishan Singh, son of Gurdat Singh, who impersonated himself as Sunder Singh, the original allottee, purchased the suit land along with his three brothers Bansi Dhar, Diwan Chand and Puran Chand through a registered sale deed dated 18.7.1958 for an ostensible consideration of Rs. 5,000/- on the basis of which mutation No. 220 dated 31.7.1958, (Ex.P1) was sanctioned. According to plaintiff, when the fraud committed by defendant-Himat Rai came to light, a case under Sections 419/420 IPC was registered against him and Kishan Singh who had impersonated himself as Sunder Singh. Kishan Singh was convicted by the Court for the above-said offence. It was further averred that out of the land, which had fallen to the share of the defendant, plaintiff and his brother Sher Singh were cultivating the land measuring 9 bighas - 11 biswas, comprised in khasra No. 286 min, from the year 1961 onwards without payment of any rent or batai. After consolidation, the land under the cultivation of the plaintiff was depicted as rectangle No. 37, Khasra Nos. 18(80) and 23(6-18), total land 14 kanals - 18 marlas. The plaintiff also denied the title of the defendant over the suit property. Defendant had filed various applications for recovery of arrears of rent, which were contested by the plaintiff and those applications were rejected by the revenue authorities. The plaintiff was holding the suit land in his own right, having acquired ownership of the same.
(3.) THE defendant contested the suit. He took up the plea that the suit was barred by the principle of res judicata. Plaintiff had no cause of action and the suit was bad for non-joinder of necessary parties. On merits, it was pleaded that defendant had purchased the suit land vide sale deed dated 18.7.1958 from Sunder Singh son of Nihal Singh for a consideration of Rs. 5,000/- and mutation was also sanctioned in this regard. He denied the knowledge of any criminal case having been registered against him and Kishan Singh, son of Gurdat Singh. According to defendant, plaintiff was tenant on the suit land under him on payment of 1/3rd batai, therefore, the plaintiff is not competent to challenge the title of the defendant. The defendant, however, admitted that various applications moved by him under Section 14 of the Punjab Security of Land Tenures Act, 1953 were dismissed summarily. It was submitted that the plaintiff could not acquire title of ownership by adverse possession being a tenant under the defendant. On the basis of pleadings of the parties, the following issues were framed by the trial Court :- "1. Whether the plaintiff is owner in possession of the suit land as alleged in plaint ? OPP 2. Whether the order dated 23.5.84 passed by Assistant Collector Ist Grade, Fatehabad is against law and facts, without jurisdiction and is not binding on the rights of the plaintiff ? OP 3. Whether the suit of the plaintiff is barred by the principle of res judicata ? OPD 4. Whether the Civil Court has no jurisdiction to try the present suit ? OPD 5. Whether the suit of the plaintiff is not maintainable in the present form ? OPD 6. Whether the plaintiff has no cause of action ? OPD 7. Whether the suit of the plaintiff is bad for non-joinder of necessary parties ? OPD 8. Relief." ;