Concurrent findings of lower courts regarding ownership rights remain unaffected by erroneous mutations, reaffirming that non-execution of a decree does not negate ownership or allow claims of adverse possession without substantive evidence.

JUDGMENT :

Arun Monga, J.

CM-2229-C-2019

For the reasons stated in application, same is allowed and delay of 260 days in re-filing the appeal is condoned, subject to all just exceptions.

MAIN CASE

For convenience, parties herein are addressed as per the recitals before learned trial Court.

2. Instant appeal is against judgment and decree dated 29.08.2014 passed by learned Additional Civil Judge (Senior Division), Loharu, vide which suit filed by plaintiff/respondent No.1 herein, for declaration and permanent injunction was decreed with costs, as affirmed by learned Additional District Judge, Bhiwani, vide judgment and decree dated 27.10.2017.

3. Briefly stated, facts as noticed by Courts below are that plaintiff (respondent No.1 herein) filed a suit for declaration and permanent injunction claiming himself as owner in possession of 1/3rd share of total land measuring 24 Kanals 11 Marlas on the basis of judgment and decree dated 23.10.1982 passed by then Sub Judge First Class, Bhiwani. Defendants No.1 to 3 were having 1/12th share in equal shares whereas defendants No.4 to 6 were having 1/4th share in equal shares and defendant No.7 was owner in possession of remaining 1/3rd share over the land in dispute.

3.1. Further, on the basis of aforesaid judgment and decree, mutation bearing No.1974 sanctioned on 30.07.1983 along with another mutation No.70 sanctioned on 30.09.2008 qua inheritance of Sukhdev, their predecessor-in-interest, in favour of defendants No.1 to 6 to the exclusion of the plaintiff were wrong and illegal being contrary to the judgment and decree dated 23.10.1982. Several requests were made by plaintiff to get the same corrected but in vain. Hence, the suit.

4. Upon notice, defendants No.4 and 7 appeared and filed their joint written statement taking preliminary objections with regard to maintainability; estoppel; locus standi; jurisdiction; concealment of facts etc.

4.1. On merits, it was submitted that Mohar Singh, father of plaintiff and defendant No.7, who was brother of grandfather of defendants No.1 to 3 and 4 to 6 along with Sukhdev were cultivating the suit property in equal shares as gair marusi tenant. Thereafter, they jointly purchased the said property in equal shares. After the death of Sukhdev, defendants No.1 to 3 became owner to the extent of 1/8th share and defendants No.4 to 6 became owner to the extent of 3/8th share. Sukhdev, grandfather of defendants No.1 to 3 and father of defendants No.4 to 6, in good faith, filed the suit and plaintiff in collusion with one Amar Singh got passed the judgment and decree dated 23.10.1982, which is illegal. Plaintiff intentionally did not insert his name in mutation No.1974 just for concealing the facts.

4.2. Remaining defendants including defendant No.5/appellant did not appear before learned trial Court and they were proceeded ex parte vide order dated 17.07.2012.

5. No replication was filed.

5.1 Based on rival pleadings, following issues were framed:

"(1). Whether the plaintiff is joint owner in possession of the suit land to the extent of 1/3rd share vide judgment and decree dated 23.10.1982, as alleged in the plaint? OPP

(2) Whether the alleged mutation No.1974 dated 30.07.1983 sanctioned on the basis of said judgment and decree dated 23.10.1982 and mutation No.70 dated 30.09.2008 regarding inheritance of deceased Sukhdev sanctioned in favour of defendants No.2 to 7, are wrong, null and void, against law and fact and not binding right of the plaintiff, as alleged in the plaint? OPP

(3) Whether the defendants are liable to be restrained from alienating t