Himachal Pradesh High Court
Yashwant Singh And Others vs Trilok Chand And Others on 27 September, 2019
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.507 of 2010.
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Judgment reserved on: 23.09.2019.
Date of decision: 27.09.2019.
Yashwant Singh and others .....Appellants.
Versus Trilok Chand and others .....Respondents.
Coram The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 . No For the Appellants : Mr. Rajiv Rai, Advocate.
For the Respondents : Mr. Rahul Mahajan, Advocate, for respondents No. 1, 3 to 8, 10, 12 and 13.
Tarlok Singh Chauhan, Judge Defendants are the appellants, who aggrieved by the judgment and decree passed by the learned first appellate Court on 09.10.2009, have filed the instant Regular Second Appeal.
2. The parties shall be referred to as the 'plaintiffs' and 'defendants'.
3. Brief facts of the case are that plaintiffs Trilok Chand and Ishari Devi filed a suit for declaration to the effect that plaintiffs, defendant No.1 and proforma defendants No. 3 to 10 1 Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 2 are co-owners of the land comprised in Khata No.196min, Khatauni No. 401, Khasra No. 1856, measuring 0-04-37 Hectares, .
situated in Mohal and Mauza Rey, Tehsil Fatehpur, District Kangra, H.P. and entitled to remain as well in future and the judgment and decree passed by the then Sub Judge Ist Class, Jawali, dated 30.09.1996 in Civil Suit No.946/95(1992) and judgment and decree dated 04.09.1997 passed by the then learned District Judge, Kangra at Dharamshala, in Civil Appeal No. 1-J/XIII-97 and order of this Court dated 24.02.1999 in RSA No. 374/98 have been passed in absence and behind the back of the plaintiffs and proforma defendants No. 3 to 10 and have been obtained by defendants No. 1 and 2 in collusion with each and the same are not binding upon the rights of the plaintiffs and proforma defendants No. 3 to 10. The consequential relief of permanent injunction restraining defendants No. 1 and 2 from alienating, cutting and removing trees and changing nature of the suit land in any manner was sought. In the alternative, relief of possession was also sought. It was averred that defendant No.2 under the garb of judgments and decrees threatened to alienate, cut and remove the trees and to change the nature of the suit land. It was also averred that defendant No.2 encroached upon the suit land during the settlement operation in the year 1985 in absence of the plaintiffs, defendant No.1 and proforma ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 3 defendants No. 3 to 10 and as such the possession of defendant No.2 is illegal, unauthorized and that of a trespasser and he is .
not entitled to retain the same in future. Lastly, it was averred by the plaintiffs that defendants No.1 and 2 were asked several times to admit their claim, but they did not admit their claim, hence, the suit.
4. The suit was contested by defendant No.2 by filing written statement wherein it was averred that the suit is time barred and the plaintiffs have no locus standi to challenge the judgments and decrees passed by the then Sub Judge Ist Class, Jawali passed in Civil Suit No. 946/95 (1992) and the then learned District Judge, Kangra at Dharamshala in Civil Appeal No. 1-J/XIII-1997 and order of the this Court in RSA No. 374/98. It was further averred that replying defendant Gorkhu Ram was full-fledged owner of the suit land as per compromise executed between him and defendant No.2 before the Civil Court and the plaintiffs have no cause of action to file the suit and they are estopped to file the suit by their act and conduct. It was also averred that previous suit was instituted by defendant No.1 with the consent and on behalf of all other co-sharers and previous judgments are binding upon other co-owners. It was further averred that the plaintiffs are brother and sister-in-law of defendant No.1 and they have instituted the suit in league with ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 4 defendant No.1 and proforma defendants No. 3 to 10. The suit is also barred by the principle of res judicata and the same is .
frivolous. Lastly, it was averred that defendant No.2 is owner in possession of the suit land and the plaintiffs, defendant No.1 and proforma defendants have no concern with the suit land and the replying defendant has every right to cut and remove the trees and to change the nature of the suit land.
5. defendant No.1.
6. The plaintiffs No written statement was filed filed replication on behalf of wherein they reasserted the allegations made in the plaint.
7. From the pleadings of the parties, the learned trial Court on 25.09.2002 framed the following issues:
"1. Whether the plaintiffs, defendant No.1 and proforma defendants 3 to 10 are co-owners of the suit land as alleged? OPP.
2. Whether the judgment and decree passed in civil suit No. RBT. 946/95/92 dated 30.9.96 and appeals thereof decided till the judgment of Hon'ble High Court of H.P. dated 24.2.99 were obtained by defendants No.1 & 2 in collusion with each other in the absence of the plaintiffs, if so its effect? OPP.
3. Whether the plaintiffs are entitled to the possession of the suit land as alleged? OPP.
4. Whether the suit is not within time? OPD.
5. Whether the plaintiffs have no locus standi to sue? OPD.::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 5
6. Whether the plaintiffs are estopped by their act and conduct? OPD.
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7. Whether the previous civil suit was instituted by defendant No.1 with the consent of all co-sharers and is thus binding upon the plaintiffs and proforma defendants as alleged? OPD.
8. Whether the suit is bad for resjudicata? OPD.
9. Whether the defendants are entitled to the special cost of Rs.20,000/-? OPD.
10. Whether the suit is not properly valued? OPD.
11. Whether in lieu of Khasra No. 734, the father of the plaintiffs namely Sh. Gulaba gave the possession of the suit land to the defendant No.2 as alleged? OPD.
12. Relief."
8. The learned trial Court after recording evidence and evaluating the same dismissed the suit constraining the plaintiffs to file an appeal before the learned first appellate Court which was partly allowed and aggrieved thereby the defendants have now filed the instant appeal.
9. On 15.09.2011, the appeal was admitted on the following substantial questions of law:
"1. Whether the fresh suit before the learned civil Court against the compromise decree/Judgment which has been affirmed by the Learned District Judge and further against which the appeal has been dismissed on the ground that no appeal can lie ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 6 against the compromise decree, is maintainable or not?
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2. Whether the learned court below can re-
adjudicate the issues which were directly or substantially already decided by the Hon'ble High Court earlier?"
10. I have heard the learned counsel for the parties and have gone through the records of the case.
11. to Substantial Questions of Law No.1 and 2:
Since, both the substantial questions of law No.1 and 2 are intrinsically interlinked and interconnected with each other, therefore, they are taken up together for consideration.
12. At the outset, it needs to be noticed that no doubt RSA No.374/1998 has attained finality, but the same would only be binding qua the parties therein and not to a stranger and any person, who is not a party thereto.
13. It would be noticed that RSA No.374/1998 was filed by Uttam Chand, defendant No.1, in the instant case against Gorkhu and since both of them, who admittedly were parties to the compromise, therefore, it was in this background that the Court held RSA No.374/1998 to be not maintainable.
14. Indubitably, the rights of the plaintiffs were not adjudicated in the earlier litigation, therefore, the suit filed by the plaintiffs was maintainable and has been rightly entertained ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 7 and thereafter correctly decided by the learned first appellate Court.
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15. At this stage, it would be noticed that the learned trial Court assumed that the judgment and decree passed in RSA No.374/1998 was inter se the parties and having attained finality, the suit was not maintainable which findings not only are erroneous, but contrary to the records for the reasons as set out above.
r to
Therefore, in such circumstances, the learned first
appellate Court while reversing the judgment and decree passed by the learned trial Court committed no error either on facts or law so as to call for interference by this Court in the second appeal.
16. It needs to be reiterated that there was no adjudication of rights of the plaintiffs in the earlier suit as the same was compromised between Uttam Chand, defendant No.1 and Gorkhu, who alone were parties to the said compromise.
The compromise so entered into between them cannot create any embargo or hindrance in the maintainability of the suit filed by the plaintiffs. The learned first appellate Court has correctly observed that the judgment and decree dated 30.09.1996 passed by the then Sub Judge Ist Class, Jawali, in Civil Suit No. 946/95/92 titled as 'Uttam Chand versus Gorkhu', judgment and decree dated 04.09.1997 passed by the then learned District ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP 8 Judge, Kangra at Dharamshala in Civil Appeal No.1-J-XIII/1997 titled as 'Gorkhu versus Uttam Chand' and the order passed by .
this Court on 24.02.1999 in RSA No. 374/1998 titled as 'Uttam Chand versus Gorkhu' are in personam between Uttam Chand and Gorkhu only and since these judgments and decrees are not in rem, the same cannot be used against plaintiff No.1 and proforma respondents and the same are not binding upon them
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r to as they were not parties either to the Civil Suit or in the Civil Appeal or for that matter in the Regular Second Appeal.
Both the substantial questions of law are answered against the appellants/defendants.
18. Resultantly, there is no merit in this appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application, if any, also stands disposed of.
27th September, 2019. (Tarlok Singh Chauhan) (krt) Judge ::: Downloaded on - 27/09/2019 20:27:43 :::HCHP