HEMANT GUPTA,J - (1.) DEFENDANT No. 1 is in second appeal aggrieved against the judgment and decree passed by learned first Appellate Court on 23.2.2004, whereby an appeal filed against the decree for possession, passed by the learned trial Court, was dismissed.
(2.) THE plaintiffs claim themselves to be owners to the extent of 7/10th share of the land measuring 43 kanals 1 marla, situated within the revenue estate of Fatehabad. The remaining land i.e. 3/10th share is stated to be owned by the State of Haryana. It is the case of the plaintiffs that the land was initially shown in possession of the tenant named Mansa Ram and later on in possession of his son Sant Lal, but the physical possession of the land always continued with the plaintiffs. Defendant No. 1 in collusion with Naib Tehsildar Gian Prakash Bishnoi got the Khasra Girdawari entries changed in his name on 30.11.1993, showing himself to be a Gair Marusi tenant to the extent of 1/3rd Batai. It is the case of the plaintiffs that defendant No. 1 never remained in possession of the land, therefore, the change in the Khasra Girdawari entries is null and void. Since defendant No. 1 has entered possession on the basis of change in the Khasra Girdawari entries forcibly, therefore, the plaintiffs claim possession of the suit land through the present suit. The defendant-appellant resisted the claim of the plaintiffs, inter- alia on the ground that the suit of the plaintiffs is against the law and facts and that the plaintiffs have no locus standi to file the present suit. The jurisdiction of the Court to entertain the suit was also denied. Alternatively, it was pleaded that if defendant No. 1 is found to be in its legal possession, then in that situation, he bas become owner thereof by way of adverse possession as he is in possession of the suit land for the last 12 years. It was further pleaded that the land is tenants permissible area and therefore, the plaintiffs have no concern with the same.
(3.) ISSUE Nos. 1 and 7-A are the material issues, which read as under :- "1. Whether the plaintiffs are owners in possession of the suit land as alleged ? OPP xx xx xx 7-A. Whether the suit land is permissible area of the tenant and vests in the State, if so, to what effect ? OPD." In respect of issue No. 1, the learned trial Court has found that the suit land has been declared as surplus and the same stood vested with the State Government. It was also found that though the plaintiffs cannot claim ownership, but their status is that of co-sharers. The learned first Appellate Court, however, held that the plaintiffs are co-sharers in the suit land and the suit land has not been partitioned by metes and bounds because of the pendency of the surplus litigation. ;