Judgment

1. This appeal is by the plaintiff against the judgment and decree dated 08.02.2017 whereby suit for declaration and injunction has been dismissed by the District Judge, Jammu.

2. The case of the appellant is that he purchased land measuring 3 kanals and 2 marlas out of Khasra No. 192 min, Khata No. 1 min and Khewat No. 1 situated at Channi Rama, Tehsil and District, Jammu vide Sale Deed executed on 09.05.1994 and registered on 10.05.1994 by the Munsiff (Sub-Registrar), Jammu.

3. It is not disputed that Kapoor Singh and Puran Singh were the owners of Khasra No. 192 min measuring about 281 kanals having equal share in it being real brothers. Kapoor Singh died earlier and his share devolved upon his heirs including his sons, Joginder Singh and Shamsher Singh, as per mutation No. 702. Both of them sold the suit land to the appellant as per Sale Deed EXPWVNB. Puran Singh also died after the death of Kapoor Singh and his share was inherited by his legal heirs including his son, Viyas Singh, who sold land measuring 1 kanal out of Khasra No. 192 min vide Sale Deed dated 29.04.2006 in favour of Des Raj, father of defendant No.2, Dev Raj.

4. The appellant challenged the Sale Deed made by Viyas Singh, defendant No.1, in favour of Des Raj, father of defendant No.2, on the ground that the land sold in favour of Des Raj vide Sale Deed dated 29.04.2006 being part of the suit land, respondent/defendant No.1, Viyas Singh, had no right or title to transfer the land, therefore, the Sale Deed according to the appellant was a nullity and void ab initio.

5. Both the defendants have filed separate written statement, denying that the land measuring 1 kanal sold by the defendant No.1 is a part of the suit land. According to both of them, the land sold by defendant No.1 vide Sale Deed dated 29.04.2006 is a separate piece of land, from the one in possession of the plaintiff and defendant No. 2, has never interfered with the possession of the plaintiff’s land. On the basis of pleadings filed by the plaintiff and defendant No.2, issues were framed by the trial court on 07.08.2009. However, defendant No.1 filed his written statements only on 20.10.2009, therefore, the then District Judge decided to re-cast the issues by order dated 03.06.2011. These issues are reproduced below:-

“1. Whether the plaintiff is the owner in possession of the land measuring 3 kanals 2 marlas in Khasra No. 192 min of village Channi Rama, purchased by him vide Sale Deed dated 9.5.94 and registered on 10.5.1994? O.P.P

2. In case, issue No.1 is proved in affirmative, whether defendant No.1 has sold 1 kanal of the land out of the land, as mentioned in issue No.1, by virtue of sale deed dated 29.4.2006 and registered on 2.5.2006 in favour of defendant No.2 without any right or competency, if so what is its effect? O.P.P

3. Whether the boundaries and dimensions of the plot of land, sold by the defendant No.1 in favour of defendant No.2, do not tally with the boundaries of the plot of the plaintiff, if so, what is its effect? O.P.D

4. Relief. O.P.Parties

6. However, the observations made by the then District Judge to justify the order dated 03.06.2011 are reproduced below:

“...the law is settled that issues are framed on material question of law and fact, as projected by the parties in their pleadings. Considering in this background, the material question for determination before the court is, as to whether the land sold by the defendant No.1 in favour of defendant No2 is part of the land of the plaintiff, as projected by him in his suit. Therefore, it is in this background that the issues were to be framed. But considering the issues already framed, in the light of the pleadings of the parties, I am of this humble opinion that the issues framed need a relook and recasting. ...”

Thus, the controversy stands narrowed down and crystallized by the court while recasting the issues.

7. The plaintiff besides his own statement examined Abid Hussain, Vijay Kumar, Jagdev Singh, Mohd.