Nasib Kaur And Ors vs Surat Singh (D)Thru Lrs & Ors

3. The facts very briefly are that Col. Surat Singh filed Civil Suit No. 735-T on 18.04.1987 for declaration that the plaintiff was the owner and was in possession of suit land. The plaintiff’s case in the suit was that while he was in joint holding of some land, he sold 2 bighas and 16 biswas of land out of his share without specifying any khasra nos. to Col. Girdhar Singh and his family members (defendant nos. 1 to 4) and thereafter defendant nos. 1 to 4 sold the land in pieces to defendant nos. 5 to 8 in the suit specifying the khasra nos. and mutation nos. 1120 and 1174. As the plaintiff did not sell the land specifying the khasra nos. to Col. Girdhar Singh and his son, they had no right to sell specific pieces of land with specific khasra nos. The plaintiff’s further case in the plaint was that the specific khasra nos. which had been mutated in favour of defendant nos. 3, 4 and 5 were not in accordance with the registered sale deed in favour of Col. Girdhar Singh and his family members. Defendant Nos. 1 to 4 did not contest the suit, whereas defendant Nos. 5 to 8 appeared and filed their written statements. On the pleadings of the parties, the trial court framed issues and by its judgment and decree dated 20.02.2004 found that the areas of land sold under the sale deed dated 17.07.1978 by the plaintiff was less by 1 Biswas than the area in the mutation entries and similarly the area of land sold by the plaintiff as Attorney of Nanak Singh was less than the area shown in the mutation entries. The trial court, therefore, ordered for correction of the mutation entries, but directed that the corrections to be carried out would have no effect as regards the possession of the suit property, which has to continue as before and would be liable to be changed as and when any partition proceeding is effected between the co-sharers. Col. Surat Singh filed an appeal C.A. No. 1721 on 20.03.2004 before the Additional District Judge, Patiala, but by judgment and decree dated 18.03.2008 the Additional District Judge, Patiala, dismissed the appeal.

4. Col. Surat Singh also filed Civil Suit No. 148-T on 09.03.1987 for permanent injunction restraining the defendants from raising any construction on the suit property or alienating the same in any manner whatsoever. The plaintiff’s case in the suit was that he sold 2 bighas and 16 biswas of land out of the joint holding of his own share without specifying any khasra nos. to one Col. Girdhar Singh and his son on 17.07.1978 and Col. Girdhar Singh has thus become a co-sharer to the extent of 2 bighas and 16 biswas in his joint holding of the property. Col. Girdhar Singh, however, did not file any partition proceedings seeking partition of his share out of the joint holding. Thereafter, Col. Girdhar Singh sold the share to the extent of 2 bighas and 16 biswas of land to the defendants in February, 1987 and the defendants are now threatening to raise a new construction near the farm house of the plaintiff in a place of their choice on the plea that they had purchased the land without specific khasra nos. from Col. Girdhar Singh. The defendants contested the suit by filing a written statement and their plea in the written statement inter alia was that their predecessor-in-interest (Col. Girdhar Singh and his son) had purchased the suit property from the plaintiff and his uncle, Nanak Singh, vide sale deeds dated 17.07.1978 and 19.07.1979 and the plaintiff has himself delivered possession of the property purchased by their predecessor-in-interest without khasra nos. Their further plea in the written statement was that Col. Girdhar Singh had constructed his kothi and quarters and planted Eucalyptus trees on the suit property and the plaintiff has not raised any objection and the plaintiff was, therefore, estopped by his act and conduct from filing the suit. On the pleadings of the parties, the trial court framed issues and in its judgment and decree dated 18.08.1998 held that the plaintiff has sold 4 bighas and 16 biswas of land to Col. Girdhar Singh and others which is in possession of the defendants and hence the plaintiff was not entitled to injunction. Aggrieved, Col. Surat Singh filed an appeal C.A. No. 16-T/1989-90 before the learned District Judge, Patiala, but by judgment and decree dated 16.05.1997, the Additional District Judge, Patiala, dismissed the appeal.

9. We find that in Civil Suit No. 148-T/9-3-1987, the plaintiff Col. Surat Singh had prayed for permanent injunction restraining the defendant from raising any construction or alienating in any manner whatsoever on the suit property and on the basis of the pleadings of the parties one of the issues framed was whether the defendants are owners and are in possession of the property purchased by them from Col. Girdhar Singh and others but by order dated 08.08.1990 the trial court deleted this issue and finally by judgment dated 08.08.1990 dismissed the suit. The plaintiff thereafter filed Civil Appeal No.16 on 19.09.1990 and contended before the Additional District Judge inter alia that the trial court was not right in deleting Issue No.2 by order dated 08.08.1990 at the stage when the parties had already led their evidence on that issue and the decision on this issue was necessary for deciding the suit itself but the Additional District Judge rejected this contention of the plaintiff with the following reasons:

13. In the result, these appeals are allowed and the impugned common judgment and decree of the High Court is set aside. Considering, however, the peculiar facts and circumstances of the case, the parties shall bear their own costs.