JEET RAM S/O LATE SH FAGNU RAM Vs. MEHAR CHAND S/O SH FADRIA

JUDGEMENT

(1.) The defendants have filed this appeal against judgment, decree dated 25.2.2002 passed by learned Additional District Judge, Solan in Civil Appeal No. 45-S/13 of 2001 decreeing the suit of the respondents after reversing the judgment, decree dated 28.8.2001 passed by learned Sub Judge 1st Class, Arki, in Civil Suit No. 153/1 of 1996.

(2.) The facts, in brief, are that respondents had filed a suit against appellants No. 2 to 4 and Fagnu Ram, predecessor-in-interest of appellant Jeet Ram alleging that their father Fadria was owner in possession of land measuring 33 bighas 7 biswas, Khata Khatauni No. 61/62 mauza Banwan as per jamabandi for the year 1960-61. After the death of Fadria, the respondents are owners in possession of the suit land. Fadria was survived by daughters also, but said sisters of respondents had already relinquished their shares in favour of the respondents. On 17.4.1960 mutation No. 633 was attested showing that Fadria had given share in the suit land to the extent of 1/3 rd each to Mastu and Fagnu. In fact, Fadria had never given any share as alleged in the mutation No. 633 dated 17.4.1960 nor he relinquished his possession at any time in favour of Mastu and Fagnu. The mutation No. 633 is wrong, illegal and is not operative against the rights of the respondents. The appellants never acquired any right, title or interest in the suit land. The entries in favour of the appellants on the basis of mutation No. 633 are wrong and illegal.

(3.) Fadria died on 10.8.1979 and during his life time he remained in possession of the suit land. After the death of Fadria, the respondents are in possession of the suit land as owners, the appellants or their predecessors never entered into possession of the suit land. The appellants taking undue advantage of wrong revenue entries, firstly tried to interfere in the possession of the respondents over the suit land, thereafter they filed an application for partition of the suit land. The Assistant Collector, 1 st Grade, Arki without deciding the question of title 3 and without giving an opportunity to respondents to prove their case allowed the application. The Assistant Collector 1 st Grade passed the order in slip-shod manner. The Divisional Commissioner confirmed the order of the Assistant Collector vide order dated 20.3.1996. The Divisional Commissioner also failed to look into the matter properly and the order of the Divisional Commissioner is also liable to be declared illegal and void.