Punjab-Haryana High Court
Ram Lal And Another vs Dev Raj And Others on 12 August, 2013
Author: Rakesh Kumar Garg
Bench: Rakesh Kumar Garg
RSA No.3931 of 2012 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.3931 of 2012 (O&M)
Date of decision:12.08.2013
Ram Lal and another ....Appellants
Versus
Dev Raj and others ....Respondents
CORAM:- HON'BLE MR. JUSTICE RAKESH KUMAR GARG
Present:- Mr. Sandeep Bansal, Advocate
for the appellants.
RAKESH KUMAR GARG, J (ORAL)
C.M.No.10587-C-2012 For the reasons mentioned in the application, which is supported by an affidavit, delay of 24 days in filing this appeal is condoned.
C.M stands disposed of.
RSA No.3931 of 2012 (O&M) Appellants alongwith proforma respondents No.4 and 5 filed the instant suit for possession of land measuring 3 marlas bearing Khewat No.1346 Khatauni No.1599, Khasra No.4142/508 (0-3) shown red in the site plan; with a further prayer restraining respondent No.1 from raising any sort of construction over the disputed property in any manner.
In nutshell, case of plaintiffs is that they and deceased Daulat Ram are owners of land in dispute. Plaintiff No.1 had filed a Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 2 Civil suit for partition in the court of Sh. H.P.Handa, the then learned Senior Sub Judge, Hoshiarpur, bearing No.187 dated 21.4.1987, decided on 8.2.1990, in which property in dispute was held to be ownership of legal representatives of Sh. Nanak Chand father of defendant and grandfather of defendants No.2 and 3. Defendant No.1 had also filed a civil suit in the court of Sh. Jaspal Verma, the then Civil Judge (Jr. Division) Hoshiarpur relating to property in dispute claiming himself to be owner of the same and that court has held ownership of plaintiffs and deceased Daulat Ram and granted limited injunction against plaintiffs that plaintiffs should take possession in due course of law and ownership of plaintiffs and that of deceased Daulat Ram was held to be valid. That finding has been returned on 17.2.01 by Sh.L.R.Roojam, the then District Judge, Hoshiarpur. After this decision none of the parties filed appeal before the Hon'ble High Court of Punjab and Haryana. So in view of findings in appeal No.159 of 27.8.99 filed by Dev Raj, defendant No.1 regarding title of plaintiffs and deceased Daulat Ram became final and defendants are entitled to possession of property in dispute, he has no right to raise any construction over it. If defendant No.1 is able to do so plaintiffs shall suffer an irreparable loss. Balance of convenience is in favour of plaintiffs and they have got a good prima facie case. Defendant No.1 was asked time and again to admit claim of plaintiffs and hand over possession of property in dispute and not to raise any construction over it, but they have refused to do so, Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 3 hence this suit.
Upon notice suit has been contested by defendant No.1 alone. Defendants No.2 and 3 had put in appearance in person, but they absented without filing any written statement and thus have been proceeded against exparte.
Defendant No.1 took preliminary legal objections to the effect that i) suit is not maintainable; ii) suit is barred by principles of resjudicata, as plaintiffs had filed a similar civil suit No.244 dated 19.4.1990 tilted as Ram Lal v. Lachhman Dass & others in the court of Sh. P.S.Bajaj, the then Sub Judge, Hoshiarpur, which was decided on 27.4.1993. Plaintiff Ram Lal had filed an appeal before the Court of Sh. Jora Singh, the then Addl.District Judge, Hoshiarpur and same was dismissed on 17.1.1997; iii) present suit is abuse of process of law and is liable to be dismissed u/s 35-A CPC; iv) suit is barred u/o 2 Rule 2 CPC; v) suit is liable to be dismissed for want of proper court fee and entire suit land is ownership and in possession of contesting defendant and he has raised construction over the same by spending huge amount, so, plaintiffs should file court fee on market value of suit property, which is more than Rs.3,00,000/-; vi) prior to contesting defendant, his father was owner in possession of suit property and in municipal record name of his father is recorded as owner in possession of the suit property bearing No.B-VI-1412/2- B-19-296 and after death of Amin Chand, contesting defendant is owner in possession of the same; vii) plaintiffs have concealed Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 4 material facts from the court, so suit is liable to be dismissed on this score; viii) otherwise defendant has become owner of suit property by way of adverse possession; ix) plaintiffs are estopped by their own act and conduct from filing the present suit. In civil suit No.RBT-532 of 1997 titled as Dev Raj vs. Ram Lal and others decided on 30.7.1999, plaintiff No.1 Ram Lal, father of defendants No.2 and 3 Daulat Ram, Puro Devi d/o Nanak Chand, Dhanti d/o Nanak Chand and Bhagat Ram s/o Nanak Chand had filed written statement alleging that they have sold the suit property Ashok Kumar & others for a consideration of Rs.1,60,000/- vide sale deed dated 11.9.1997 and they had also handed over possession of the same to Ashok Kumar and others. Now plaintiffs cannot file the suit for possession. On merits, repeating almost same averments contesting defendant has prayed for dismissal of the suit.
From the pleadings of the parties, following issues were framed by the learned lower Court vide its order dated 27.2.2004:-
1. Whether plaintiffs are entitled to possession of suit land as prayed for? OPP
2. Whether plaintiffs are entitled to injunction as prayed for? OPP
3. Whether suit is barred by principle of resjudicata?
4. Whether suit is not maintainable? OPD
5. Whether suit is barred under order 2 Rule 2 CPC?OPD
6. Whether defendants have become owner of suit land by way of adverse possession? OPD
7. Relief?Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 5
After hearing learned counsel for the parties and appreciating the evidence on record, the trial Court dismissed the suit vide judgment and decree dated 04.12.2008. Issue Nos. 1 to 3 were decided against appellants holding that the suit in hand was barred by resjudicata as question of the title of the plaintiffs which is substantially involved in this suit had already been decided against them vide judgment Ex.D1 and Ex.D3 and thus neither the plaintiffs were entitled to decree for possession nor injunction as prayed.
Aggrieved from the judgment and decree of the trial Court, plaintiffs filed an appeal before the First Appellate Court which was also dismissed.
The findings of the lower Appellate Court reads thus:-
"Plaintiffs Ram Lal, Bhagat Ram, Parro Devi and Dhanti have sought possession of land measuring 3 marlas comprised in Khasra No.4142/508 situated at Sutehri-Phagwara Road, Hoshiarpur on the strength of their title. EX.PA is the jamaband for the year 2000-01 wherein present plaintiffs and Daulat Ram predecessor- in-interest of defendants No.2 and 3 have been recorded as owner of property in question. This very question was raise by Ram Lal one of the plaintiffs in civil suit No.244 of 19.4.1990 titled as Ram Lal vs. Lachhman Dass wherein Amin Chand, Bhagat Ram, Puro, Dhanti, Anant Ram and Daulat Ram predecessor-in-interest of defendants No. 2 and 3 were also impleaded on record. However, the claim of plaintiff Ram Lal seeking possession of land measuring 3 marlas comprised in khasra No.4142/508 was declined by the court of Sh.Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 6
P.S.Bajaj the then Senior Sub Judge, Hoshiarpur vide his judgment and decree dated 27.4.93 proved on record as Ex. D1 and Ex.D2. While returning its finding, learned Civil Court categorically observed in para No.10 of the judgment that right of the plaintiff to claim posse of the disputed property also stand extinguished by lapse of time on account of long interrupted possession of defendants No.1 and 2 as owners to his knowledge. Meaning thereby the learned Civil Court refuted the claim of plaintiff Ram Lal and hold the possession of defendant No.1 Lachhman Dass and defendant No.2 Amin Chand predecessor-in-interest of respondent No.1 Dev Raj as owner of the suit property to the knowledge of Ram Lal.
Still dis-satisfied with the judgment and decree dated 27.4.93 plaintiff Ram Lal preferred an appeal before the Court of Shri Jora Singh Ld. Addl. District Judge, Hoshiarpur. However same was dismissed vide judgment and decree dated 17.1.97 proved on record as Ex.D3. The dismissal of the appeal tend to prove that the lis brought by plaintiff Ram Lal claiming possession of the suit property on the basis of his title had attained finality because no appeal was filed against judgment dated 17.1.1997. The matter claiming possession of suit property on the basis of their title which now has been raised by the plaintiffs in the instant suit remained directly and substantially in issue between the same parties in earlier civil suit No.244 of 19.4.90 title of which has already been heard and dismissed by the competent court of law vide judgment and decree dated 27.4.93 proved on record as Ex.D1 and Ex.D2. So the findings of the learned civil court vide judgment and decree dated 27.4.93 operates as resjudicata as observed by Hon'ble Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 7 Supreme Court of India in pronouncement titled as Amarendra Komalam & another vs. Usha Sinha & another. (Supra) wherein it has been observed that:
"An issue, already settled in a suit between the same parties in respect of certain subject matter, cannot be allowed to be raised again between the very same parties in regard to the same subject matter but in a different suit."
and authority of law by Hon'ble High Court of Punjab & Haryana titled as Oriental Electricals Insulations (P) Ltd. vs. Faridabad Complex Administration and Another (Supra) relied upon by the learned counsel for respondent as well as learned counsel for appellants wherein it has been observed:
"Two suits between the same parties-Matter in dispute in two suits substantially the same-previous suit heard and decided by the Court-Held, previous suit operates as resjudicata."
Much has been stressed upon by the learned counsel for appellants that respondent No.1 Dev Raj brought a civil suit No.532 of 1997 for declaration to the effect that he is owner in possession of plot measuring 3 marlas comprised in khasra No.4142/508 before the Court of Jora Singh, the then Civil Judge (Jr. Division) Hoshiarpur. However, learned civil Court vide its judgment and decree dated 30.7.99 proved on record as Ex.D5 and Ex.D6 refuted the claim of plaintiff Dev Raj qua his ownership over plot in dispute. However granted a limited injunction against the plaintiffs restraining them from interfering into the peaceful possession of Dev Raj by categorically observing that the defendant Ram Lal shall be at liberty to get possession in due course of law. Learned counsel Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 8 for appellants while contending that the said later decision dated 30.7.99 operates as resjudicata has relied upon authority of law by Hon'ble Punjab & Haryana High Court tiled as Smt. Shanti versus Smt. Bhullan and another (Supra), wherein it has been observed that:
"Resjudicata- which of the two judgments inter se the parties operates as resjudicata i.e. The later decision or the earlier one-Later decision operates as resjudicata where two conflicting decision on an issue."
And authority of law by Hon'ble High Court of Punjab & Haryana titled as Oriental Electricals Insulations (P) Ltd. vs. Faridabad Complex Administration and Another (Supra) wherein it has been observed that:
"Two suits between the same parties-Matter in dispute in two suits substantially the same-Previous suit heard and decided by the Court-Held, previous suit operates as resjudicata."
Yet the authority of law titled as Smt. Shanti versus Smt. Bhullan and another (supra) cannot be invoked to the help of appellants because as I have already observed that the matter in dispute has already attained finality being directly and substantially in issue in previous Civil Suit No.244 of 19.4.90 titled as Ram Lal vs. Lachhman Dass decided on 27.4.93, so the findings of the previous suit operates as resjudicata as observed by Hon'ble High Court of Punjab and Haryana in latest authority of law relied upon by the learned counsel for appellants as well as counsel for respondent No.1 titled as Oriental Electricals Insulations (P) Ltd. vs. Faridabad Complex Administration and Another (Supra) .
Hon'ble Supreme Court of India in pronouncement Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 9 titled as Amarendra Komalam & another vs. Usha Sinha & another. (Supra) relied upon by the learned counsel for respondents has also taken the view that wherein issue already settled in a suit between the same parties in respect of subject matter cannot be allowed to be raised again between the very same parties in regard to the same subject matter but in a different suit. So applying the said principles of law, plaintiffs were not entitled to re-agitate their claim for possession by way of present suit on the strength of the findings by civl court in Civil Suit No.532 of 1997 decided on 30.7.99 titled as Dev Raj vs. Ram Lal proved on record as Ex.D5 because the claim of the plaintiff Ram Lal was already dismissed in the previous Civil Suit titled as Ram Lal vs. Lachhman Dass vide judgment dated 27.4.1993 proved on record as Ex.D1.
From another aspect, plaintiffs Ram Lal etc. ceased to have any interest, right or title in subject matter of the present suit because in their written statement proved on record as Ex.D9, filed in Civil Suit No.532 of 1997 titled as Dev Raj vs. Ram Lal, present plaintiffs who were defendants No.1 to 5 in that suit categorically pleaded that they have sold the property in suit to defendant Nos. 6 and 7 of that suit namely Ashok and Sunder vide sale deed dated 11.9.97 for a consideration of Rs.16,000/- alongwith physical possession thereof. So, when they have already sold the property in question to Ashok and Sunder, they ceased to have title over suit property which imply the fact now the plaintiffs were left with no right title or interest in subject matter of the suit after the said sale deed at the time of filing of the present suit on 10.11.2003. So, the learned lower Court committed no Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 10 illegality while refuting the claim of plaintiffs." Still not satisfied, the appellants have filed the instant appeal raising following substantial questions of law:-
(a) Whether the learned lower appellate court in complete disregard to the provisions of Order 41 Rule 31, caused manifest injustice by not formulating any points for determination and the decision thereon and more so even the issues framed by the trial court have not been even mentioned in the complete judgment, what to talk of giving issue wise finding or raising any points for the determination?
(b) Whether Ld. Courts below could have read the evidence in piece meal as suited to discard defence of appellants?
(c ) Whether the admissions of the defendant/ respondents and the documentary evidence coupled with the laid down law were sufficient to decree of the suit of the appellants?
(d) Whether the findings of Ld lower Courts on issues decided against the appellant are contrary to pleadings, law, equity, justice, good conscience and natural justice ?
I have heard learned counsel for the appellants and perused the impugned judgments and decrees of the Courts below. Both the Courts below on appreciation of evidence have recorded concurrent findings that the present suit filed on behalf of the appellants is hit by the principle of resjudicata as the question of the title, as raised by the appellants, has already been decided between Kadian Savita 2013.08.16 13:52 I attest to the accuracy and integrity of this document High Court Chandigarh RSA No.3931 of 2012 (O&M) 11 the parties by a Court of competent jurisdiction vide judgment and decree dated 27.4.1993 Ex.D1 and D2.
Not only this, Courts below have further found that at the time of filing of the present suit on 10.11.2003, plaintiffs have no right to interfere in the subject matter of the suit as they had already sold the property vide sale deed dated 11.9.1997 in Civil Suit No.532/1997 (Ex.D9).
Counsel for the appellants could not challenge the findings of the Courts below before this Court.
In view thereof, this Court is of the opinion that no substantial question of law, as raised, arises in this appeal.
Dismissed.
August 12, 2013 (RAKESH KUMAR GARG)
savita JUDGE
Kadian Savita
2013.08.16 13:52
I attest to the accuracy and
integrity of this document
High Court Chandigarh