Rajasthan High Court - Jaipur
Abdul Rahman vs Smt. Prasony Bai And Ors. on 4 December, 2001
Equivalent citations: 2002(2)WLC488, 2003(3)WLN560
JUDGMENT M.R. Calla, J.
Heard learned counsel for the appellant. It is not necessary for us to give history of the litigation in detail because the same has been narrated meticulously by the learned Single Judge in the impugned judgment and order dated 29.11.2001. On the basis of facts of the case, learned Single Judge has found that controversy between the parties stood decided finally with regard to cancellation of the allotment to Abdul Rehman i.e. the present appellant and also the mutation in favour of Smt. Prasony Bai i.e. the respondent who had suffered the agony of this litigation for decade together. The litigation had started in the year 1979 and ended on 14.6.1999 after two rounds of litigation. The present appellant having failed in the previous litigations filed the present suit No. 17/99 with the prayer for declaration that Smt. Prasony Bai is not the daughter of Mangal Singh and 'SANAD' allotted to her in February, 1986 is illegal, that the plaintiff Abdul Rahman is in adverse possession of the land in question, the prayer has also been made in the suit for declaration that Smt. Prasony Bai is not the daughter of Mangal Singh; that the plaintiff Abdul Rehman was in adverse possession even during the life time of Mangal Singh. On the basis of pleadings of the parties the following three issues were framed:
(i) whether the dispute of the civil suit in question had already been decided and adjudicated upon by the Courts and whether it is hit by the principles of res judicata?
(ii) whether the suit is beyond limitation?
(iii) whether the plaintiff had no locus standi to file the suit?
Additional issue was then framed on 10.8.1999 and the plaintiff Abdul Rahman i.e. the present appellant had filed civil revision petition No. 1317/99 against additional issue wherein proceedings were stayed and ultimately revision petition was allowed on 24.10.2000. Thereafter, the matter remained pending in the trial Court without any effective progress in the proceedings.
2. The Board of Revenue vide its order dated 28.11.1985, had observed that allotment made to the present appellant Abdul Rahman vide order dated 11.5.1979 was passed at the back of Smt. Prasony Bai; the Tehsildar should to have allotted the land of Abdul Rahman without giving any notice to the persons in whose names the land already stood recorded; and the Tehsildar Kishangarhbas had acted in a most irresponsible manner while allotting the land to present appellant Abdul Raman and for that high-handedness, disciplinary proceedings should be initiated against Tehsildar. The Board of Revenue had set aside the order passed in favour of Abdul Rahman and had restored the order dated 18.7.1979 passed by the Collector with the further direction that Tehsildar should be dealt with departmentally.
3. Import of the order of the Board of Revenue was that the allotment made in favour of the present appellant stood cancelled and the action of the Revenue Authorities in depriving Prasony Bai daughter of Mangal Singh from the land in question was adversely commented. This order of Board of Revenue was challenged before the High Court in S.B. Civil Writ Petition No. 2274/85, but the writ petition of Abdul Raman i.e. the present appellant was dismissed and the order of the Board of Revenue was upheld. This cancellation of allotment made to Abdul Raman attained finality and present appellant had lost the case before each and every Court upto the High Court. The Review Application filed before Revenue Board was also dismissed. The mutation were opened in the name of Prasony Bai, even at this juncture, the present appellant had filed the present suit on the same facts and for the same relief. This time, the appellant Abdul Rahman challenged that Prasony Bai is not the daughter of Mangal Singh, whereas, the controversy has already been adjudicated upon by the Courts below for which a preliminary issue had been framed by the Court. In the backdrop of this factual situation, the learned Single Judge found it to be a fit case for exercising inherent powers under Section 151, CPC read with Section 24 of Code of Civil Procedure and has held that the appellant despite having lost two times on the same issue in regard to same property was still dragging on the litigation by way of filing of this civil suit. On the basis of record of the original proceedings which was summoned by the learned Single Judge and on the basis of judgment of the Revenue Board etc., it was held that the subject matter of the suit stood fully covered by the principle of res judicata and suit of the plaintiff was to be dismissed on that count at the cost of Rs. 3,000/-. Learned Single Judge has also observed that it is unfortunate that for last 20 years the respondent was not able to get the possession despite being successful in all the cases in the trial Court. Concerned Tehsildar was therefore directed to execute the orders by putting the defendant Parsony Bai in possession within a period of 15 days and accordingly the revision petition as well as suit filed by the revision petition were dismissed.
4. Mr. Ashok Gaur has appeared on his own on behalf of respondent Prasony Bai and raised a preliminary objection that this special appeal under Section 18 of Rajasthan High Court Ordinance, 1949 is not maintainable. The preliminary objection has been opposed by Mr. Asopa learned counsel appearing on behalf of appellant. We find that the learned Single Judge has exercised the powers of original jurisdiction while passing the impugned order. We, therefore, find that the objection against maintainability of appeal cannot be sustained and the same is hereby rejected.
5. Mr. Asopa learned counsel for the appellant has submitted that it was no case for applying Section 11 of Code of Civil Procedure which also includes the principles of constructive res judicata. We find that in the facts of the case, the learned Single Judge has rightly applied the principle of constructive res judicata. The real controversy was with regard to the same property and the same parties were litigating throughout. The present appellant having failed to establish his claim of allotment and such allotment having been cancelled by the orders of the competent Courts, which was upheld by the High Court has again resorted to file a suit afresh against respondent Prasony Bai, this time in the guise of showing that she was not the daughter of Mangal Singh. This issue was also substantially involved in the revision petition. Once it is found that present appellant was not entitled to have allotment in his name, the allotment had been cancelled, he admittedly has no locus standi now to challenge the fact that Smt. Prasony Bai was not the daughter of Mangal Singh.
6. In the facts and circumstances of the case, we find that the learned Single Judge has rightly exercised the powers under Section 151 read with Section 24 of Code of Civil Procedure so as to put to end to the abuse of process of the Court and to bring an end of the wholly frivolous litigation. In our opinion, such an approach was necessary in the facts and circumstances of the present case. Facts of the present case depict a very dismal state of affairs in which party having litigious perserverance has already been able to prolong the matter and to keep the controversy alive for more than 24 years by now and is still desirous to continue third round of litigation. Litigious perserverance is not to be rewarded rather it is to be discouraged. In our opinion learned Single Judge has rightly exercised the power under Section 151, CPC read with Section 24 of Code of Civil Procedure in the facts and circumstances of the present case and such an approach is the need of the hour.
7. There is no merit in this special appeal the same is hereby dismissed.
8. Even at this stage, Mr. Asopa learned counsel for the appellant makes a request that 15 days' time be extended for Tehsildar to put the respondent Prasony Bai in possession. We find no reason to extend time and the request of learned counsel for the appellant is hereby declined.