Mahesh Grover, J.@mdashThe present appeal has been filed by Shish Ram impugning the judgments of the Courts below vide which his prayer
for declaration to the effect that he was owner in possession of the land measuring 17 bighas and 19 biswas had been declined.
2. The appellant had filed a suit seeking a declaration to the effect that he along with his brother Ram Singh (impleased as proforma respondent in
the present appeal) are the owners in possession of the land measuring 17 biswas and 19 bighas. This land had come to them from their fatherShri
Raja Ram, who, in turn, had purchased it from one Dalip Singh. Respondent No. 1 had obtained a decree on 29.5.1970 from the Court of
Assistant Collector Ist Grade, Bhiwani (for short, `A.C. Ist Grade'') by invoking the provisions of Section 8 of the Punjab Tenancy Act and had
succeeded in establishing his occupancy rights before that Court.
3. The appellant had also challenged decree dated 29.5.1970 on the ground that it is illegal and void and not binding on his rights.
4. I have heard learned counsel for the parties and carefully perused the record.
5. Shri R.K. Chhokkar, learned counsel for the appellant argued that the learned trial Court had come to the conclusion that out of total land
measuring 17 bighas and 19 biswas, the appellant was in possession of land measuring 17 bighas and 12 biswas. He submitted that this finding of
the Court below was never challenged by respondent No. 1 and, therefore, the same has become final. Shri Chhokkar also submitted that the
decree of 1970 passed by A.C. Ist Grade was a result of fraud played by respondent No. 1 behind the back of the appellant and, therefore, it had
no binding effect on him. Apart from this, he contended that the said decree pertained to only 12 bighas of land and not with regard to 17 bighas
and 19 marlas comprised in khasra No. 109 Min and, therefore, the decree of 1970 would not bind the entire land.
6. Shri Om Parkash Sharma, learned counsel for respondent No. 1 argued that the orders of the Revenue Courts could not be challenged before
the Civil Court and the appellant, if aggrieved by the order of the A.C. Ist Grade, could have filed an appeal or revision or he could have moved
the authority concerned for setting aside the decree as it was an ex parte decree. He submitted that since the appellant had not availed of any such
remedy, he was precluded from challenging that decree before the Civil Court.
7. I have considered the submissions of the learned counsel and am of the opinion that the appeal deserves to be accepted. A perusal of decree
dated 2.8.1970 passed by A.C. Ist Grade shows that it pertains to only 12 bighas comprised in khasra No. 109 Min and has, thus, had no
relevance to the land measuring 17 bighas and 19 biswas over which the appellant has been making claim. This fact has not been disputed by the
learned counsel for respondent No. 1 which is also borne out from the pleadings of the parties. In view of this, respondent No. 1 cannot get
anything more than what the decree was conferring upon him by way of occupancy rights pertaining to 12 bighas of land. He has absolutely no
claim on the suit land of the appellant, measuring 17 bighas and 19 biswas on which he was found to be in possession.
8. Since the proceedings before the A.C. Ist Grade pertained to only 12 bighas of land, so challenged to the said decree, to my mind, was totally
unfounded as the appellant was himself laying claim to 17 bighas and 19 biswas and not to the land measuring 12 bighas.
9. So far as the submission of the learned counsel for respondent No. 1 that since A.C. Ist Grade had passed decree in 1970 and the appellant
had not availed of any remedy by way of appeal or revision against the same and therefore, the Civil court had no jurisdiction to entertain his plea,
is concerned, it may be futile to comment on the same in the circumstances of the case because the appellant was laying claim to 17 bighas and 19
biswas of land which was not a part of the decree passed in favour of respondent No. 1 pertaining to his claim. Therefore, the suit of the appellant
ought to have been read as a suit pertaining to only 17 bighas and 19 biswas which was not a part of proceedings before the A.C. Ist Grade. The
appellant had an independent right to seek a declaration to that effect.
10. On the basis of the above discussion, I allow the appeal, set aside the judgment of the Courts below, decree the suit of the appellant and
declare that he is owner in possession of the land in dispute measuring 18 bighas and 19 biswas. It is further declared that respondent No. 1 has no
claim over the suit land and he cannot get any right beyond what has been conferred upon him by way of the decree passed in his favour in 1970
by the A.C. Ist Grade.
