Punjab-Haryana High Court
Jagdish Kumar And Anr. vs Devinder Kumar And Ors. on 10 May, 2006
Equivalent citations: (2006)144PLR778
Author: Mahesh Grover
Bench: Mahesh Grover
JUDGMENT Mahesh Grover, J.
1. This is an appeal against the judgments and decrees passed by the Courts below by which the suit filed by the appellants has been dismissed.
2. The plaintiff-appellants had filed a suit seeking a declaration that appellant No. 1 is owner in possession of 2/3rd share and appellant No. 2 is owner in possession of 1/3rd share in the suit land. It was alleged that their predecessor-in-interest were mortgagees on the land owned by Gobind Ram and Ram Jowai in Pakistan since 1870 and the same had devolved upon them after the death of their ancestors. Even after partition, they continued as mortgagees under Gobind Ram and Ram Jowai, who were allotted land in lieu of their land in Pakistan in village Akbarpur, Tehsil and District Ropar.
3. The grievance of the appellants is that they were shown as mortgagees with possession only up to the extent of 1/3rd kanals 8 marlas was in their possession. This fact, according to them, was admitted by the respondents vide writing dated 28.8.1974. The plea of the appellants, therefore, was that they be declared as mortgagees in possession of the entire land and since the same had not been redeemed, they be also declared as owners of the same which they had become by efflux of time. The cause of action, according to them, had accrued on 8.2.1982 when the respondents threatened to alienate the suit land.
4. The respondents resisted the suit of the appellants and amongst other objections, they took up a categoric objection that the appellants' suit was barred by the principle of res judicata as the previous suit filed by them on identical facts was dismissed on 3.5.1986. The fact that Gobind Ram and Ram Jowai had immovable property in Pakistan was admitted and the fact that the suit land was allotted to them after partition in lieu of the land held by them in Pakistan was also admitted, but it was denied that the land was ever mortgaged with the appellants. The respondents claimed that they were owners of the entire suit land and the appellants had no concern with the same. The writings dated 28.8.1974 and 27.7.1980 were denied as being false and fabricated.
5. Upon the pleadings of the parties, the trial Court struck as many as seven issues, out of which issue Nos. 1 and 4 are crucial for the purposes of the present controversy and, therefore, the same are extracted below:
1. Whether plaintiffs No. 1 and 2 are the owners in possession to the extent of 2/3 and 1/3 shares respectively of the suit land as alleged in the plaint? OPP
4. Whether present suit is barred on the principle of res judicata and also under Order 2 Rule 2 C.P.C.? OPD The trial Court determined issue No. 1 by saying appellant-Jagdish Kumar was entitled to be declared as owner of 1/3rd share and appellant No. 2 to the extent of 1/6th share of the suit land since the land had not been redeemed within the period of limitation, but the necessary relief was not granted to the appellants, as the suit was held to be barred by the principle of res judicata under the provisions of Order 2 Rule 2 C.P.C.
6. The appellants went up in appeal against the findings of the trial Court and the lower Appellate Court confirmed the findings of the trial Court on issue Nos. 1 and 4 and dismissed the appeal with costs.
7. I have heard learned Counsel for the parties and carefully gone through the record.
8. As far as issue No. 1 is concerned, both the Courts below have returned a concurrent finding of fact that appellant was the mortgagee to the extent of 1/3rd share while appellant was mortgagee to the extent of 1/6th share of the land in dispute. However, this relief of declaration was denied to them in view of the finding on issue No. 4 regarding res judicata.
9. Therefore, the crucial question would be as to whether the appellant should have been non-suited on the basis of the findings recorded on issue No. 4. To answer this, one would have to go back to the earlier suit which was filed by appellant No. 1 against the respondents. Appellant No. 1-Jagdish Kumar had filed civil suit No. T101/14.2.84/3.7.84 which was a suit for permanent injunction to restrain the respondents to make any interference or dispossess him or to alienate the suit land. During the course of proceedings of that suit, appellant No. 1 through his counsel suffered a statement saying that he did not want to press other issues regarding title with respect to the suit land, but only confine himself to the residual prayers made by him. It is this statement and the consequential dismissal of the suit which were held to be coming in the way of the appellants as both the Courts below observed that since the appellants had given up their claim in regard to the issue of title, the subsequent plea now being sought to be raised in the instant suit is barred by the principle of res judicata. For proper appreciation of the true import of the statement made by appellant No. 1 through his counsel in the earlier suit, a copy of which has been placed on record along with other documents during the course of arguments, the same is reproduced below:
Statement of Mr. A.L. Verma, Advocate for the plaintiff.
I want finding of the court only regarding the possession over the suit land, as that of the plaintiff. I do not press other issues regarding title with respect of the suit property and, therefore, do not press for issue No. 2, regarding a will by Malghatha and Narain Dass in favour of the plaintiff. If need be, a separate remedy available under law shall be resorted to.
R.O. & A.C. Sd/- In English Sd/- 7.3.1986 Jagdish Kumar SJIC, Ropar Sd/- In English (A.K. Verma, Adv.) for the Deff.
10. The trial Court, which was seized of the matter, recorded the aforementioned statement and proceeded to dismiss the suit as having become infructuous. The order of the trial Court is also reproduced below:
3.5.1986 : Present : Counsel for the Parties Today Sh. S.P. Bhandari, Advocate, learned Counsel for the defendants and one of the defendants named Kulbhushan have made a statement in the court which has been recorded. The defendants as per this statement, shall not dispossess the plaintiff from the suit property, forcibly and unlawfully and that if so advised they shall have to (sic) resolve (sic) to lawful procedure for the purpose. The defendants shall remain bound by this undertaking given by them in the court. The plaintiff may if so advised seek his lawful remedy for anything including title, if he feels aggrieved by any act of the defendants. With this order this suit having become infructuous is dismissed. File be consigned to the record room. @ TAB : Announced.
2.5.1986 Sd/-
Sub Judge, Ist Class, Ropar.
11. A perusal of the aforementioned order and the statement shows that the right of the appellants to have recourse to their remedy to establish their title was adequately safe-guarded. The trial Court, while disposing of the suit, had categorically stated that the appellants if so advised, would seek their lawful remedy for anything including the title and to the similar effect was the statement when he said, "I do not press other issues regarding title with respect to the suit property and, therefore, do not press for issue No. 2, regarding a will by Malghatha and Narain Dass in favour of the plaintiff. If need be, a separate remedy available under law shall be resorted to.
In view of the statement and the consequential order based thereon, it can hardly be said that provisions of Order 2 Rule 2 C.P.C. would be attracted.
12. Learned Counsel for the appellants relied on judgment of this Court reported as - Harbhagwan and Ors. v. Smt. Punni Devi and Ors. wherein it was held that if an earlier suit is dismissed as withdrawn with liberty to file fresh suit on the same cause of action, the subsequent suit will not be barred by any principle of law.
13. Learned Counsel for the appellants further relied on a judgment of the Supreme Court reported as 2000 (2) P.L.J. 181 (S.C.) K.S. Bhoopathy and Ors. v. Kokila and Ors. wherein a dear distinction has been made between the abandonment and withdrawal with the permission of the Court. It was held therein that if a partial withdrawal is made from the suit with permission of the Court, the subsequent suit would not be barred by the principle of res judicata.
14. I am in complete agreement with the judgments cited above and, therefore, have no hesitation to hold that the appellants cannot be non suited on the ground of subsequent suit being barred by the principle of res judicata.
15. Shri H.S. Sirohi, learned Counsel for the respondents submitted that the suit was barred by the principle of limitation. He argued that even if the appellants claim was to be taken as correct, they cannot be granted any relief because the suit was filed on 31.5.1986, whereas the cause of action, according to the appellants themselves, arose to them on 8.12.1982 and since the suit was required to be filed within three years, the same was not within limitation. In support of his contention, Shri Sirohi placed reliance on the judgment reported as Bakhtawar Singh and Anr. v. Sada Kaur and Anr..
16. I do not find any force in the aforementioned argument of the learned Counsel for the respondents. The appellants had earlier filed suit in 1984 in which the plea of title was also raised, but subsequently the issue of title was not pressed and permission was sought to raise this issue in a subsequent proceeding. This permission was granted and the earlier suit was dismissed as having become infructuous on 3.5.1986. The present suit was filed immediately thereafter. In view of these peculiar facts and the time spent by the appellants in pursing their remedy by filing an earlier suit, it cannot be said that the present suit is beyond the period of limitation. In my opinion, the judgment in Bukhtawar Singh's case (supra) does not help the cause of the respondents as that was a case where the suit was withdrawn on account of some formal defect in the pleadings which was not on record and, therefore, the Courts were in dark regarding the formal defect which had persuaded the litigant therein to withdraw the earlier suit. In the instant case, the present proceedings did not suffer from any such infirmity. The suit filed earlier was for permanent injunction and to restrain the respondents from alienating the suit property. A statement was suffered by the respondents also that they would not dispossess the appellants except in due process of law in view of this, the appellants had made a statement regarding question of title to be raised in a subsequent suit.
17. The suit of the appellants, cannot be termed to be beyond limitation because they had prosecuted the earlier suit in good faith and benefit of time spent by them in that suit is available to them. Consequently, I hold that the present suit is within limitation.
18. As a sequel to the above discussion, the appeal is allowed, judgments and decrees of the Courts below are set aside and a declaration is accorded to the appellants as follows:
(1) Appellant No. 1 is in possession of 2/3rd share of the suit land;
(2) Appellant No. 2 is in possession of 1/3rd share of the suit land; and (3) Since the mortgage has not been redeemed, the appellants become the co-sharers to the extent of 1/3rd and 1/6th shares in the entire land, respectively.