Punjab-Haryana High Court
Harbhagwan And Ors. vs Smt. Punni Devi And Ors. on 11 December, 1998
Equivalent citations: AIR1999P&H223, (1999)122PLR810, AIR 1999 PUNJAB AND HARYANA 223, (1999) 1 RENTLR 500, (1999) 2 ICC 487, (1999) 2 RECCIVR 298, (1999) 2 CURLJ(CCR) 375, (1999) 2 LANDLR 648, (1999) 122 PUN LR 810
JUDGMENT V.K. Bali, J.
1. This Regular First Appeal has been directed against judgment and decree dated September 22, 1979 rendered by the Senior Sub Judge, Bhatinda, vide which suit brought about by the plaintiff/respondents for recovery of Rs. 23,866.60/- as their three fourth share of compensation in the suit land, with 6% interest per annum was decreed.
2. Brief facts of the case reveal that a suit for recovery of the amount, referred to above, was instituted by the plaintiffs on the allegations that Shri Bansi Ram father of plaintiffs, died about 15 years back leaving behind the plaintiffs as his legal heirs. Budh Ram was the brother of said Bansi Ram who died in 1966. He was not married and, thus, had no child and as such the plaintiffs were the sole heirs of Budh Ram as well. Plaintiffs and Budh Ram together instituted a suit for possession by way of pre-emption of agricultural land measuring 23 bighas 3 biswas situated in Patti Mehna, Bhatinda against Birj Lal and others and the same was decreed in their favour. Budh Ram had half share and the plaintiffs had the remaining half share. Possession of the preempted land was delivered to the plaintiffs and Budh Ram to the extent of their respective shares in the month of May, 1962 and thereafter they remained in joint possession of the said land. On April 16, 1963 Budh Ram sold 1/4th share out of the aforesaid land to Harbhagwan, Pawan Kumar and Jaswant Rai. As a result of the said sale and subsequent death of Budh Ram, plaintiffs became joint owners of 3/4th share in the land measuring 23 bighas 13 biswas and the defendants became joint owners to the extent of 1/4th share in the said land. However, the defendants taking undue advantage of the absence of plaintiffs from Bhatinda, secured a wrong entry in he revenue record showing them to be sole owners of the entire land measuring 23 bighas 13 biswas. The land aforesaid had since been acquired for the purpose of Bhatinda Cantonment and an amount of Rs. 31,822.13/- was sanctioned as its compensation which amount had since been collected by the defendants alone to the exclusion of the plaintiffs, who, according to the respective rights of the parties in the said land, were entitled to a sum of Rs. 23,866.60/- which amount had also been collected by the defendants. When demand of the plaintiffs to secure their share of compensation fell on deaf ears, the suit giving rise to present appeal was filed.
3. The suit instituted by the plaintiffs was contested by the appellants herein by inter-alia, pleading that they had become owners of the suit land by adverse possession and that the Civil Court had no jurisdiction to entertain the suit and that the suit was not maintainable in the present form. It was also pleaded that the suit was bad for non-joinder of necessary parties and that the plaintiffs had earlier also filed a civil suit for joint possession of the suit land on 18-12-1971 which was dismissed as withdrawn on 17-1-1973.
Pleadings of the parties gave rise to the following issues :--
" 1. Whether the plaintiffs are the sole heirs of Bansi Ram and Budh Ram deceased? OPP
2. Whether the plaintiffs and Budh Ram instituted apre-cmption suit for the possession of this agricultural land which was decreed as alleged? OPP.
3. Whether the plaintiffs and Budh Ram deceased took possession in (sic).
4. Whether Buddh Ram deceased sold his 1/4th share to Harbhagwan, Jaswant Rai, Pawan Kumar in equal shares? OPP
5. Whether the plaintiffs have become joint owners of 3/4th share in the acquired area on the death of Jaswant Rai and Budh Ram deceased as alleged in para 5 of the plaint? OPP
6. Whether defendants had become the owners of the acquired area by adverse possession? OPD
7. Whether the civil Court has no jurisdiction to try this suit? OPD
8. Whether the suit is bad for non-joinder of necessary parties? OPD
9. What is the effect of the withdrawal of plaintiffs suit for joint possession of the land in question? OP Parties.
10. Relief.
After resultant trial, as mentioned above, suit of the plaintiffs was decreed.
4. In support of the appeal, learned counsel for the appellants vehemently contends that the respondents had filed two successive civil suits for joint possession. Whereas first suit was filed on April 10, 1969 and dismissed as withdrawn with permission to file fresh on the cause of action on November 18, 1969, the other one was filed on December 18, 1979 and thereafter withdrawn, once again with permission to file fresh on the same cause of action. That being the position, present suit for recovery, which is based on title, which was sought to be established in the earlier suits, is barred by the principle of res-judicata, further contends the learned counsel.
5. I find no merit in the contention of the learned counsel, noted above. Both the suits concededly, were dismissed as withdrawn with liberty to file fresh on the same cause of action. The third suit on the same cause of action could have not been barred by any principle, be it Section 11 or Order 2, Rule 2 or Order 23, CPC. Even though the cause of action might have been based on the title of the suit land but after the land was acquired under the provisions of the Land Acquisition Act, 1894, the plaintiffs were left with no choice but for to file a suit for recovery. Assuming, the cause of action i n both the suits was based upon title in the suit land and was akin in all the cases, yet, as referred to above, inasmuch the earlier two suits were dismissed as withdrawn with permission to file fresh on the same cause of action, third suit will not be barred by any principle of law.
6. Learned counsel for the appellants then contends that the adverse possession of the appellants had ripened into ownership as the same was uninterrupted, without any protest having ever been raised by the plaintiff/respondents or any one else. These pleadings of the appellants had given rise to issue No. 6. The learned trial Judge, in my view, rightly returned the finding on the said issue against the appellants and in favour of the plaintiffs. Even if mutation had been sanctioned in favour of the appellants with regard to the entire land on October 20, 1964, within less than about five years, the first suit for joint possession was filed, reference whereof has been given above. It was followed by yet an other suit in 1971 and the present suit in 1976. Plaintiffs were allthrough asserting their right in the suit land. In this view of the matter, the possession of the defendants over the suit land cannot be said to be hostile and continuous for more than 12 years. In addition to that, it may be mentioned that the suit land was acquired by the Government and a copy of the Award has been placed on record as Annexure P-13. The land acquisition proceedings would manifest that the possession of land was taken by the government on October 10, 1974. Plaintiffs could institute the suit within 12 years. Looked from any angle, thus, this plea of the appellants needs to be rejected.
7. Finding no merit in this appeal, I dismiss the same, leaving, however, the parties to bear their own costs.