The captioned second appeal is filed by the legal

representatives

of

the

original

plaintiff

who

have

questioned the concurrent findings of the Courts below

wherein plaintiff’s suit is dismissed by both the Courts.

Though trial Court answered issue No.1 in the affirmative

and declared that plaintiff is the owner and in possession

of the suit schedule property, however, suit is dismissed

by recording a finding that plaintiff has failed to prove

interference and the said judgment and decree is

confirmed by the Appellate Court. These concurrent

findings are under challenge.

For the sake of brevity, the parties are referred

to as per their rank before the trial Court.

The plaintiff filed a suit for declaration and

injunction by claiming that he is the absolute owner and

in possession of the suit land pursuant to occupancy rights

- 4 -

granted by the Land Tribunal. The plaintiff placed on

record the occupancy certificate issued in Form No.10 by

the competent authority. The plaintiff also contended that

pursuant to grant of occupancy rights by the Land

Tribunal, the Assistant Director of Land Records directed

the surveyor to carry out hissa proceedings in terms of

grant of occupancy rights granted by the Land Tribunal.

The plaintiff contended that Sy.No.416 is divided in four

parts. The present suit is filed by the plaintiff alleging that

defendant has highhandedly got his name mutated to

Sy.No.416/4. Therefore, plaintiff contended that suit land

bearing Sy.No.416/4 is part of 2 acres of land granted to

the plaintiff by the land Tribunal and therefore, feeling

aggrieved by the mutation, the present suit is filed seeking

relief of declaration to declare the mutation proceedings in

M.R.No.30/1997-98 as null and void and for consequential

relief of injunction.

4.

The

defendant,

on

receipt

of

summons,

tendered appearance and filed written statement and

- 5 -

stoutly denied the entire averments made in the plaint.

The defendant on the contrary disputed the grant of

occupancy rights in favour of plaintiff. The defendant

further contended that mutation effected in his favour is in

accordance with law as defendant has inherited the

property measuring 17 guntas in Sy.No.416/4, 14 guntas

in Sy.No.416/1 and 14 guntas in Sy.No.416/3. The

defendant also claimed that plaintiff has filed declaration in

respect of Sy.No.415 and not Sy.No.416/4 and on these

set of grounds, sought for dismissal of the suit.

5.

The plaintiff and defendant to substantiate their

respective claim have let in oral and documentary

evidence. The plaintiff to substantiate his claim has

produced Form No.10 issued by the jurisdictional Tahsildar

vide Ex.P-2. Referring to Ex.P-2, trial Court was of the

view that plaintiff has succeeded in proving that occupancy

rights was granted to him by the Land Tribunal to an

extent of 2 acres in Sy.No.416. The trial Court referring to

revenue records found that plaintiff is in lawful possession.

- 6 -

While examining Ex.P-2, trial Court has recorded a

categorical finding that Land Tribunal on enquiry has

granted occupancy rights in Sy.No.416 by order dated

30.07.1981 to an extent of 2 acres.

6.

The trial Court while referring to Ex.P-3 which is

the mutation effected in favour of defendant found that

the mutation does not indicate on what basis defendant

got his name mutation to an extent of 17 guntas which is

part and parcel of 2 acres which is granted to the plaintiff

herein. Though trial Court held that plaintiff is the

absolute owner and in possession, the suit is dismissed on

the ground that interference is not proved by holding that

plaintiff has failed to prove that there is interference by

the defendant. Accordingly, issue No.6 is answered in the

negative. While dealing with issue No.4, trial Court held

that suit is not maintainable as relief of declaration

questioning the mutation cannot be entertained before the

civil Court. The trial Court was of the view that plaintiff

has to exhaust his remedies