Allahabad High Court
Anand Prakash Sharma And Others vs Jashwant Singh And Others on 20 October, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 6 Reserved A.F.R. Case :- SECOND APPEAL No. - 734 of 2012 Appellant :- Anand Prakash Sharma And Others Respondent :- Jashwant Singh And Others Counsel for Appellant :- Manish Chandra Tiwari,B.N. Upadhaya, Chandan Sharma,M.K. Rajvanshi,Nitin Sharma, Sanjay Kumar Srivastav Counsel for Respondent :- Santosh Kr. Srivastava, B.N.Agrawal,S. Agarwal,Santosh Dwivedi,Smt. Alka Srivastava And Case :- SECOND APPEAL No. - 733 of 2012 Appellant :- Anand Prakash Sharma And Others Respondent :- Jashwant Singh Counsel for Appellant :- Manish Chandra Tiwari,B.N. Upadhaya, Chandan Sharma,M.K. Rajvanshi,Nitin Sharma, Sanjay Kumar Srivastava Counsel for Respondent :- Santosh Kr. Srivastava,Alka Srivastava, B.N.Agrawal Hon'ble J.J. Munir,J.
1. Both these Second Appeals arise out of a common judgment, but separate decrees passed in two connected Civil Appeals, which, in turn, have arisen from suits inter partes relating to the same subject matter that are in the nature of cross-suits. This judgment will dispose of both the appeals.
2. Second Appeal No. 733 of 2012 has been preferred by the plaintiff of Original Suit No. 273 of 1998 against the defendants of the said suit, whereas Second Appeal No. 734 of 2012 has been preferred also by the same man, Anand Prakash Sharma, but in his capacity as defendant no.1 to Original Suit No. 1162 of 1998, instituted by the first defendant to Original Suit No. 273 of 1998. Effectively, both the suits were contested between Anand Prakash Sharma and Jaswant Singh. While Anand Prakash Sharma's suit being O.S. No. 273 of 1998 was dismissed, Jaswant Singh's suit being O.S. No. 1162 of 1998 was decreed by the Trial Court, also by a common judgment, but separate decrees. The suits were consolidated and tried together, with O.S. No. 273 of 1998 as the leading case. Most of the evidence of parties was recorded in the leading suit. Civil Appeal No. 9 of 2005 was preferred by Anand Prakash Sharma against the judgment and decree dated 17.03.2005 passed in O.S. No. 273 of 1998, whereas the other appeal being Civil Appeal No. 10 of 2005, was also preferred by Anand Prakash Sharma, but from the judgment and decree dated 17.03.2005 passed in O.S. No. 1162 of 1998. Both the appeals were consolidated and heard together by the Additional District Judge (Special), Baghpat with Civil Appeal No. 9 of 2005 being treated as the leading case. The learned Additional District Judge dismissed both the appeals by a common judgment, but separate decrees dated 28.05.2012.
3. Second Appeal No. 734 of 2012 has been preferred by Anand Prakash Sharma from the decree passed in Civil Appeal No. 9 of 2005. He has preferred Second Appeal No. 733 of 2012 from the decree passed in Civil Appeal No. 10 of 2005. Both the appeals have been admitted to hearing by this Court vide separate orders dated 30.04.2014 on the same substantial question of law, which reads:
"Whether once a suit no. 737 of 1996 in between Jashwant Singh v. Anand Prakash Sharma an others on same facts circumstances dismissed and withdrawn after filing of written statement without permission to file fresh suit is clearly barred under Order XXIII Rule 1(4) and Order II Rule 2(C) C.P.C."
4. Heard Mr. Akshay Pratap, Advocate holding brief of Mr. Chandan Sharma, learned Counsel for the appellants and Mr. B.N. Agrawal, learned Counsel for the respondents in both the appeals.
5. In order to appreciate the substantial question of law involved, it is imperative to refer to the facts that have given rise to these appeals.
6. Anand Prakash Sharma, the plaintiff of O.S. No. 273 of 1998, who shall hereinafter be referred to as ''the plaintiff' for the sake of convenience, unless the context requires otherwise, instituted O.S. No. 273 of 1998 aforesaid against Jaswant Singh son of Ram Swarup, Krishnapal Singh son of Pirthi Singh and Yogesh Sharma son of Bool Chand, with allegations that he is the owner in possession of the house depicted at the foot of the plaint by letters अ ब स द, situate at Village Patti Wajidpur, Gandhi Road, Qasba Baraut, Pargana and Tehsil Baraut, District Meerut. The house aforesaid has been assessed to tax and assigned Municipal Premises No. 17/302B. The plaintiff is paying house tax relating to the said house, since the year 1989, to the Nagar Palika Baraut. The plaintiff and Smt. Maya Devi, wife of Rajendra Kumar, had purchased the land/ plot, whereon the house last mentioned stands, from Jagannath son of Dhoom Singh, a resident of Village Patti Wajidpur, District Baghpat vide registered sale deed dated 12.08.1987. Later on, he purchased the half share of Smt. Maya Devi in the land subject matter of O.S. No. 273 of 1998 (for short, ''the suit property') vide registered sale deed dated 11.03.1996. As such, the plaintiff has become the sole owner of the suit property, including the house constructed thereon.
7. It is the plaintiff's case that on the plot of land purchased as aforesaid, he got a house constructed, wherein no one else has got any share or interest. The defendants to the suit, that is to say, Jaswant Singh, Krishnapal Singh and Yogesh Sharma are quarrelsome persons and intend to forcibly grab the suit property together with the plaintiff's house standing thereon. The plaintiff asked the defendants to desist from doing so, but they did not relent. The last time the plaintiff asked the defendants from interfering with his possession over the suit property, they refused. This happened on 11.07.1996.
8. The plaintiff got his plaint amended vide order dated 15.12.1997 to say that upon the defendants filing their written statement, he came to know that the defendants, in connivance with the former Sub-Divisional Officer of Baraut, R.S. Chahar, got an auction sale of the suit property in their favour, that was in excess of the property mortgaged by Jagannath Prasad in favour of the Uttar Pradesh Financial Corporation (for short, ''the UPFC') and also different from the said property. The mortgaged property that was auctioned in favour of the defendants is very different from the suit property, which shows the revenue sale claimed by the defendants to be bogus, void and non est. Defendant no. 1 to the suit, Jaswant Singh, who shall hereinafter be referred to as the defendant, unless the context requires otherwise, was alleged to have, in the past, instituted a suit for permanent injunction against the plaintiff being O.S. No. 737 of 1996, which he unconditionally withdrew vide order dated 03.04.1997 passed by the Civil Judge (Sr. Div.), Meerut. It was pleaded, therefore, that the suit brought on the same cause of action (i.e. O.S. No. 1162 of 1998) is barred by the principle of res judicata.
9. It is also the plaintiff's case that the sale certificate issued in favour of the defendant does not adversely affect the plaintiff's right in House No. 17/302B, which is a part of House No. 12/298. It was also averred that looking to the background of the sale certificate being issued in favour of the defendant, the plaintiff is entitled to a declaration of his rights. A permanent injunction was sought to the effect that the defendant to the suit be restrained, by a permanent injunction, from interfering with the plaintiff's possession and title over house bearing No. 17/302B, as described at the foot of the plaint by letters अ ब स द, situate at Town Baraut, Gandhi Road, Qasba Baraut, Pargana and Tehsil Baraut, District Meerut, or endeavouring to dispossess him therefrom. A declaration was sought (by amendment vide order dated 15.12.1997) to the effect that the sale certificate dated 13.06.1996 issued by the Sub-Divisional Officer, Baraut, R.S. Chahar, in favour of the defendant and registered in the Office of the Sub-Registrar on 14.06.1996, being one in relation to a property different from that mortgaged by Jagannath son of Dhoom Singh in favour of the UPFC, is void and non est, which has no effect on the plaintiff's exclusive right and title in House No. 17/302B, situate at Gandhi Road, Qasba Baraut.
10. A joint written statement was filed on behalf of all the three defendants to the suit under reference, saying that the plaintiff was not the owner of the suit property and the suit had been instituted on the foot of incorrect facts. The suit property and that abutting it is a part of Khasra No. 472/1, Khewat No. 25, admeasuring 3 biswa, 15 biswansi, situate at Village Wajidpur. Devendra, Narendra and Jainendra, all sons of Lala Raghubir Singh, were owners in possession of the entire land, comprising the Khasra last mentioned. The entire area of land comprising the Khasra last mentioned was purchased by Jagannath son of Dhoom Singh from Devendra vide registered sale deed dated 20.07.1960. In consequence, Jagannath became the sole owner in possession of the said Khasra shown by letters अ ब स द (the suit property).
11. Devendra Kumar son of Jagannath took a loan from the UPFC in the year 1986, for the repayment whereof, Jagannath stood guarantor. As part of the guarantee, he mortgaged the suit property on 09.09.1986 with the UPFC. There was default in repayment of the loan that Devendra Kumar had taken. In consequence, the UPFC caused the suit property to be sold through public auction, held by the Sub-Divisional Officer, Baraut on 09.09.1994. The defendant purchased the suit property in the said auction being the highest bidder. The S.D.O. accepted the bid and issued a sale certificate in his favour, that was registered. Possession of the suit property was also delivered to the defendant. The plaintiff, however, mala fide attempted to encroach upon a part of the suit property on 04.07.1996, that is denoted in the map annexed to the written statement by letters अ क ख ग. The defendant complained to the Police, on account of which the plaintiff was not successful in his endeavour to encroach. It was on this account that the defendant instituted O.S. No. 737 of 1996 for a permanent injunction against the plaintiff, restraining him from interfering with his possession in the suit property. Later on, since the plaintiff retracted and the threat of encroachment ceased, the defendant withdrew O.S. No. 737 of 1996. After withdrawal of Suit No. 737 of 1996, evil design made itself bold with the plaintiff again, and on occasion, he encroached into the suit property and constructed a room, a verandah and a boundary wall, denoted by letters अ क ख ग in the map, annexed to the written statement. The said encroachment was done taking advantage of the defendant's weakness in reporting the trespass. The plaintiff then commenced action.
12. It is the defendant's further case that after mortgaging the suit property denoted in the written statement by letters अ ब स द with the UPFC, Jagannath son of Dhoom Singh had no interest to convey in the plaintiff's favour or Smt. Maya Devi's, or anyone else's. The plaintiff and all others knew about the fact that the suit property had been mortgaged by Jagannath with the UPFC. The execution of the sale sale deed conveying the suit property by Jagannath in favour of the plaintiff or Smt. Maya Devi, after he had mortgaged it on 09.09.1986, is of no consequence and does not confer any right or title upon him/ them. It is then pleaded by the defendant that the plaintiff's case that the property shown in the written statement by letters अ क ख ग has been assessed to house tax by the Nagar Palika as House No. 17/302 is not part of the suit property, but another appurtenant house, is incorrect, which the plaintiff, by clever manoeuvre has got a subdivision assigned and entered in his name. It does not confer any benefit upon the plaintiff. The entire property, that has been shown at the foot of the plaint by letters अ ब स द, has one house Premises No. 12/298, Gandhi Road, Baraut, entered in the name of Jagannath Prasad son of Dhoom Singh. Later on, the said house has been numbered as 12/337, also entered in the name of Jagannath Prasad son of Dhoom Singh. Still later, the said house has been assigned No. 17/303 and at that stage, the name of Jagannath Prasad son of Dhoom Singh has been mutated out and that of the defendant (Jaswant Singh) entered in the house tax assessment record by the Municipal Board. It is the defendant's case that part of the suit property shown by letters अ क ख ग is in illegal occupation of the plaintiff. Besides, the entire suit property is entirely owned by the defendant and that the defendant is taking separate steps to dispossess the plaintiff.
13. Upon the pleadings of parties, in O.S. No. 273 of 1998, the following issues were framed by the Trial Court (translated into English from Hindi):
(1) Whether the plaintiff is the owner in possession of property shown by letters अ ब स द at the foot of the plaint?
(2) Whether the sale certificate dated 13.06.1986 in favour of defendant no.1, for the reasons given in the plaint, is inoperative and void? If yes, its effect?
(3) To what relief is the plaintiff entitled?
14. A number of documents were filed on behalf of the plaintiff as well as the defendant, which need not be recapitulated, as the summary of these is set out in copious detail in the judgments of the two Courts below.
15. On behalf of the plaintiff, the plaintiff, Anand Prakash Sharma, examined himself as PW-1, one Kaluram as PW-2 and Phool Singh as PW-3. On behalf of the defendants, defendant Jaswant Singh testified in the dock as DW-1, Bhopal Singh as DW-2 and Ramjan as DW-3. A commission in the suit was also issued and the Commissioner's report is available on record as Paper No. 36-Ga1, together with the annexed map.
16. Original Suit No. 1162 of 1998 was instituted by Jaswant Singh, the defendant against Anand Prakash Sharma, the plaintiff, Smt. Maya Devi and Janeshwar with a case that the owner in possession of the house denoted by letters अ ब स द in the map annexed to the plaint, giving rise to the suit under reference, was one Jagannath son of Dhoom Singh. The plot of land, on which the house stood, had an area of 567 square yards or 3 biswa 15 biswansi. M/s. Shiv Shakti Oil Udyog, Gandhi Road, Baraut secured a loan from the UPFC and for the repayment of the said loan, Jagannath Prasad stood guarantor. He mortgaged his property last mentioned on 09.09.1986 in favour of the UPFC, executing the necessary documents. M/s. Shiv Shakti Oil Udyog could not repay the loan advanced by the UPFC, in consequence of which the UPFC issued a recovery certificate against M/s. Shiv Shakti Oil Udyog and the guarantor, Jagannath Prasad. In execution of the recovery certificate, Jagannath Prasad's property, above described, was sold in a public auction by the revenue authorities. The said property, according to the defendant, is the subject matter of O.S. No. 1162 of 1998, instituted by him against the plaintiff, Anand Prakash Sharma and others. It is the defendant's case that he purchased the suit property subject matter of O.S. No. 1162 of 1998 at the public auction held on 09.09.1994, making the highest bid of Rs. 2,01,000/-, which was accepted. The entire sum of money was deposited with the Authorities. The auction sale in favour of the defendant was confirmed by the Sub-Divisional Officer, Meerut.
17. Upon securing the requisite stamp papers from the defendant, the Sub-Divisional Officer executed a sale certificate in his favour on 08.02.1996, which was registered with the Sub-Registrar, Baraut on 13.06.1996. The defendant received the registered sale certificate from the Sub-Registrar's office. It is also the defendant's case that the Sub-Divisional Officer, after execution and registration of the sale certificate, delivered actual physical possession on 04.07.1996 over the suit property subject matter of O.S. No. 1162 of 1998.
18. It is necessary to mention at this junction that the property, subject matter of O.S. No. 1162 of 1998 and that subject matter of O.S. No. 273 of 1998, instituted by the plaintiff, for all intents and purposes, is the same property. The distinction, that the plaintiff has attempted to carve out between the two, stands negatived by the findings of fact recorded by the two Courts below, that are no longer in issue in the present appeal. Thus, the property subject matter of O.S. No. 1162 of 1998 shall, in keeping with its description given in the earlier part of the judgment, be mentioned as the suit property hereinafter.
19. It is the defendant's case that no sooner he was delivered possession by the Sub-Divisional Officer over the suit property on 04.07.1996, the plaintiff, along with some antisocial elements attempted to trespass and encroach upon a part of the suit property denoted in the plaint map by letters क ख ग घ, which the defendant resisted. He reported the matter to the Police also. The plaintiff withdrew and went away threatening that he would take possession of the suit property at an opportune time. The defendant claims to have inquired of the plaintiff as to how he lays claim to a part of the suit property denoted by letters क ख ग घ, whereupon it was revealed by the plaintiff that he had a sale deed dated 12.08.1987 in his favour executed by Jagannath Prasad and another by Smt. Maya Devi, defendant no.2 to O.S. No. 1162 of 1998. He asserted that he was the sole owner in possession of the said property. It is pleaded that the entire suit property was mortgaged by Jagannath Prasad on 09.09.1986 in favour of the UPFC in order to offer security for the loan availed by M/s. Shiv Shakti Oil Udyog and upon default, the entire suit property was caused to be sold in a revenue sale by the UPFC in realization of its overdues. It was in this sale, as already stated, that the defendant has purchased the suit property. It is then the defendant's case that the plaintiff forcibly occupied a part of the suit property, denoted by lettersक ख ग घ on 20.06.1997, taking advantage of the defendant's weakness in reporting the trespass. The efforts made by the defendant before the Sub-Divisional Officer to recover possession, forcibly taken by the plaintiff, did not yield result.
20. It is the defendant's case that the part of the suit property denoted by letters क ख ग घ, an area of 65 square yards, is in the illegal occupation of the plaintiff. He has refused to vacate the same despite demand. Some part of it, the plaintiff claimed to have purchased from Smt. Maya Devi and it is for this reason that the defendant has impleaded Smt. Maya Devi as defendant no.2 to O.S. No.1162 of 1998.
21. The defendant Jaswant Singh, in O.S. No. 1162 of 1998 claimed a declaration to the effect that on the basis of the sale certificate dated 08.02.1996, registered on 13.06.1996, he is the owner of the suit property (denoted by letters अ ब स द). A mandatory injunction was claimed against the plaintiff, besides Smt. Maya Devi and Janeshwar, to the effect that out of the suit property, the part denoted by letters क ख ग घ, the defendants to the suit, be ordered to withdraw from occupation of the said land, part of the suit property, and in case of failure to do so, the defendant (Jaswant Singh) be put in possession of the above mentioned part of the suit property through the process of Court, after expelling the plaintiff (Anand Prakash) and the other two defendants to the present suit.
22. The suit was contested by filing a written statement, more or less on the same terms as the case of the plaintiff (Anand Prakash) set out in his plaint, giving rise to O.S. No. 273 of 1998.
23. On the pleadings of parties, in O.S. No. 1162 of 1998, as many as fourteen issues were framed, that read (translated into English from Hindi):
(1) Whether the plaint is undervalued?
(2) Whether the court-fee paid is insufficient?
(3) Whether the plaintiff's suit is liable to be stayed under Section 10 CPC?
(4) Whether the plaintiff on the basis of the public auction dated 09.09.1994 is the owner in possession of the house in question, denoted in the map by letters अ ब स द?
(5) Whether the land shown by letters क ख ग घ, part of the property denoted by letters अ ब स द, has been encroached upon (by the defendant) (sic) on 20.06.1997?
(6) Whether defendant no.1, on the basis of the sale deeds dated 12.08.1987 and 13.09.1996, is the owner in possession of the disputed house, as averred in Paragraph No. 20 of the written statement?
(7) Whether the land on which the disputed house stands is different from that mortgaged by Jagannath and not part of House No. 12/298, as averred in Paragraph No. 22 of the written statement?
(8) Whether the plaintiff's suit is barred by res judicata, as averred in Paragraph No. 22 of the written statement?
(9) Whether the S.D.O., Baraut, in order to extend unlawful gain to the plaintiff, has sold 567 square yards of land in place of the mortgaged land, 95 feet in length and 49 feet in width, admeasuring 497 square yards? If yes, its effect?
(10) Whether the auction sale dated 09.09.1994 has not been confirmed and the suit is premature? If yes, its effect?
(11) Whether defendant no.1 is entitled to the benefit of being a bona fide purchaser and in continuous adverse possession, as averred in Paragraph No. 30 of the written statement?
(12) Whether the suit is barred by the principles of acquiescence and estoppel?
(13) Whether the defendant is entitled to special costs?
(14) To what relief is the plaintiff entitled to?
*(15) Whether the suit is barred by limitation?
(*Issue No. 15 does not find record in the judgments passed either by the Trial Court or the Appellate Court, but a perusal of the order-sheet dated 01.08.2002 in O.S. No. 1162 of 1998 shows that the said issue was framed by the Presiding Officer below the type-written issues, numbered as Issue No. 14 erroneously; it should have been numbered as '15')
24. The Trial Court took up for decision Issue No. 1 of O.S. No. 273 of 1998 and Issues Nos. 4, 6, 8 and 9 of O.S. No 1162 of 1998 together. The issues under reference deal with the substantial part of the dispute between parties, where the Trial Court has concluded that the land, that Anand Prakash claims to be in his ownership possession, cannot be accepted because on the basis of the public auction dated 09.09.1994, Jaswant Singh is proven to be its owner. It was also opined that the sale deed dated 12.08.1987, claimed by Anand Prakash in his favour, does not confer any right, title or interest upon him. The sale certificate registered in favour of Jaswant Singh on 13.06.1996 was held by the Trial Court, on a consideration of oral evidence, including that of the witnesses of Anand Prakash, to be valid, who testified that the auction sale was held, wherein they had participated. Issues Nos. 1, 2 and 3 in O.S. No. 1162 of 1998 were answered by the Trial Court in favour of Jaswant Singh. It was held that the suit is not liable to be stayed under Section 10 CPC, because both the suits have been consolidated and tried together.
25. On Issue No.7, where Anand Prakash introduced a case that the land mortgaged by Jagannath Prasad, was different from the one he had built his house upon, and that Anand Prakash's house is not part of House No. 12/1998, it was held, upon a comparison of boundaries of the property mentioned in the affidavit by Jagannath at the time of mortgaging it, with those of the suit property, that it was the same property, which was mortgaged and later on sold in auction for the realization of its dues by the UPFC that Jaswant Singh purchased.
26. In consequence of its findings on the various issues, the Trial Court dismissed O.S. No. 273 of 1998 brought by Anand Prakash against Jaswant Singh and others with costs, whereas O.S. No. 1162 of 1998, instituted by Jaswant Singh against Anand Prakash and others, was decreed with costs. It was declared that on the basis of the sale certificate dated 08.02.1996, registered on 13.09.1996, Jaswant Singh was the owner of the suit property (denoted by letters अ ब स द). A mandatory injunction was issued, ordering Anand Prakash to vacate the land denoted by letters क ख ग घ, that was part of the suit property, and deliver possession to Jaswant Singh, and upon failure to do so, Jaswant Singh would be entitled to recover actual and physical possession of the said property through process of Court.
27. The Lower Appellate Court, in hearing the appeal, formulated three points for determination. These read (translated into English from Hindi):
(1) Whether the plaintiff (Anand Prakash) had any right to purchase the property denoted by letters अ ब स द, which he claims to have done through the sale deed of the year 1987?
(2) Whether the property mortgaged by Jagannath with the UPFC in the year 1986, included the disputed land, denoted by letters अ ब स द or not?
(3) Whether Anand Prakash after execution of the sale certificate in favour of Jaswant is still owner in possession of the disputed land shown by letters अ ब स द?
28. It must be remarked at the outset that though the Lower Appellate Court has wholesomely dealt with the substantial issues arising between parties under the points of determination framed, these are somewhat unhappily worded. But, that does not detract, in any manner, from the substance of determination made on the issues arising between parties. Though writing a judgment of affirmation, the Lower Appellate Court has examined evidence threadbare with reference to each point of determination covering all the issues, arising in the suit.
29. The Lower Appellate Court has opined, upon a careful comparison of the boundaries of the suit property purchased by Jagannath from its erstwhile owner, Devendra son of Raghubir way back in the year 1960 through a registered sale deed as also the subsequent sale deeds executed that there was no property with Jagannath in the vicinity, apart from that bearing Khasra No. 472/1, admeasuring 3 biswa 15 biswansi or 567 square yards, which he mortgaged with the UPFC. That finding of fact about the identity of the suit property and its auction sale at the behest of the UPFC by the S.D.O. has been recorded concurrently by the Courts below, where a valid sale has been found to have taken place in favour of Jaswant Singh. The later sale deed executed by Jagannath in favour of Anand Prakash and Maya Devi and the one by Maya Devi, transferring her half share, purportedly purchased through the sale deed of 1987, in favour of Anand Prakash, have been held to be void, because Jagannath lost all title to the suit property as he mortgaged it with the UPFC, which later on brought it to sale for the realization of its loan overdues through public auction. On the other hand, the proceedings of the auction in favour of Jaswant Singh have been found to be fully established by both documentary and oral evidence on record. These questions need not detain this Court in the present appeal, which has been admitted to hearing on the substantial question of law, indicated hereinabove.
30. The learned Counsel for the appellants has submitted and attempted to show that the property, that was purchased by Anand Prakash and Maya Devi through the sale deed of 1987 from Jagannath, was one that Jagannath purchased from a certain Shekhar Chandra Jain. It was not Jagannath's property purchased from Devendra son of Raghubir way back in the year 1960, that he subsequently mortgaged with UPFC. These are issues not open in this appeal, which the Lower Appellate Court, in any case, on a careful analysis of the documentary and oral evidence, has answered for the defendant and against the plaintiff.
31. So far as the substantial question of law involved in this appeal is concerned, learned Counsel for the plaintiff has submitted that Anand Prakash was always in possession of the suit property since 1987 i.e. since the execution of the sale deed in his favour by Jagannath. Therefore, aggrieved by the perpetual interference with his possession by Jaswant Singh, he instituted Suit No. 273 of 1998 for a permanent injunction to restrain him from interfering with it and for declaring the sale certificate registered on 13.06.1986 null and void. In the aforesaid suit, Jaswant Singh filed his written statement on 14.05.1998, where he took a plea that possession of the suit property was delivered to him by the Sub-Divisional Officer on 04.07.1996, but the same was illegally taken by the plaintiff. However, the date of trespass has not been indicated, despite the incident occurring months before the institution of O.S. No. 273 of 1998 by Anand Prakash. It is submitted that in O.S. No. 1162 of 1998 instituted by Jaswant Singh, it is pleaded that the possession was illegally taken by Anand Prakash on 20.06.1997, which happens to be 11 months before filing of his written statement in O.S. No. 273 of 1998. It is argued that it is quite evident that the date of the alleged possession being illegally taken by Anand Prakash was concocted to create an artificial cause of action and seek remedy through O.S. No. 1162 of 1998.
32. It is next submitted that on the same cause of action, Jaswant Singh had earlier instituted O.S. No. 737 of 1996, seeking permanent injunction to the effect that Anand Prakash and the other defendants to that suit be restrained from interfering with his possession over the suit property, that is to say, the house as per boundaries shown at the foot of the plaint, giving rise to the said suit. Later on, this suit was withdrawn by Jaswant Singh on 03.04.1997, without leave of the Court. It is argued that Jaswant Singh instituted O.S. No. 737 of 1996, which he withdrew without leave and then maliciously instituted O.S. No. 1162 of 1998 on the same cause of action. It has been emphatically argued that cause of action in both the suits is one and the same and the first suit being withdrawn without liberty, O.S. No. 1162 of 1998 is barred by the provisions of Order XXIII Rule 1(4) and Order II Rule 2 CPC.
33. It is precisely on the last limb of the submission that the substantial question of law that is involved in this appeal was formulated. The other ancillary submissions made may also be relevant to some extent in order to judge whether on the facts a case of bar to the trial of O.S. 1162 of 1998 under either of the provisions of law can be inferred.
34. In support of his contention that the subsequent suit brought by Jaswant Singh is barred under the law, learned Counsel for the appellants has relied on the decision of the Supreme Court in Sarguja Transport Service v. State Transport Appellate Tribunal, M.P. Gwalior and others, (1987) 1 SCC 5, where it has been held:
"7. The Code as it now stands thus makes a distinction between "abandonment" of a suit and "withdrawal" from a suit with permission to file a fresh suit. It provides that where the plaintiff abandons a suit or withdraws from a suit without the permission, referred to in sub-rule (3) of Rule 1 of Order XXIII of the Code, he shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. The principle underlying Rule 1 of Order XXIII of the Code is that when a plaintiff once institutes a suit in a court and thereby avails of a remedy given to him under law, he cannot be permitted to institute a fresh suit in respect of the same subject-matter again after abandoning the earlier suit or by withdrawing it without the permission of the court to file fresh suit. Invito beneficium non datur -- the law confers upon a man no rights or benefits which he does not desire. Whoever waives, abandons or disclaims a right will loose it. In order to prevent a litigant from abusing the process of the court by instituting suits again and again on the same cause of action without any good reason the Code insists that he should obtain the permission of the court to file a fresh suit after establishing either of the two grounds mentioned in sub-rule (3) of Rule 1 of Order XXIII. The principle underlying the above rule is founded on public policy, but it is not the same as the rule of res judicata contained in Section 11 of the Code which provides that no court shall try any suit or issue in which the matter directly or substantially in issue has been directly or substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. The rule of res judicata applies to a case where the suit or an issue has already been heard and finally decided by a court. In the case of abandonment or withdrawal of a suit without the permission of the court to file a fresh suit, there is no prior adjudication of a suit or an issue is involved, yet the Code provides, as stated earlier, that a second suit will not lie in sub-rule (4) of Rule 1 of Order XXIII of the Code when the first suit is withdrawn without the permission referred to in sub-rule (3) in order to prevent the abuse of the process of the court."
35. On behalf of the respondent, it is submitted that in O.S. No. 737 of 1996 and O.S. No. 1162 of 1998, the cause of action and the relief claimed are different. O.S. No. 737 of 1996 was instituted by Jaswant Singh for a permanent injunction to restrain the defendants to that suit, including Anand Prakash, from interfering with Jaswant Singh's possession over the suit property, whereas O.S. No. 1162 of 1998 was instituted by Jaswant Singh against Anand Prakash and the other defendants to the suit for a declaration to the effect that on the basis of the sale certificate registered on 13.06.1996, he be declared the owner of the suit property (denoted by letters अ ब स द) and a mandatory injunction directing the defendants, including Anand Prakash issued to handover possession of the land denoted by letters क ख ग घ in the plaint map, part of the suit property, denoted by letters अ ब स द, in respect whereof, the declaration has been claimed.
36. In support of his contention, learned Counsel for the defendant has placed reliance upon a decision of the Supreme Court in Vallabh Das v. Dr. Madan Lal and others, (1970) 1 SCC 761, where, in the context of a bar under Order XXIII Rule 1(4) CPC, it has been observed:
"5. Rule 1 of the Order 23, Code of Civil Procedure empowers the courts to permit a plaintiff to withdraw from the suit brought by him with liberty to institute a fresh suit in respect of the subject-matter of that suit on such terms as it thinks fit. The term imposed on the plaintiff in the previous suit was that before bringing a fresh suit on the same cause of action, he must pay the costs of the defendants. Therefore we have to see whether that condition governs the institution of the present suit. For deciding that question we have to see whether the suit from which this appeal arises is in respect of the same subject-matter that was in litigation in the previous suit. The expression "subject-matter" is not defined in the Civil Procedure Code. It does not mean property. That expression has a reference to a right in the property which the plaintiff seeks to enforce. That expression includes the cause of action and the relief claimed. Unless the cause of action and the relief claimed in the second suit are the same as in the first suit, it cannot be said, that the subject-matter of the second suit is the same as that in the previous suit. Now coming to the case before us in the first suit Dr Madan Lal was seeking to enforce his right to partition and separate possession. In the present suit he seeks to get possession of the suit properties from a trespasser on the basis of his title. In the first suit the cause of action was the division of status between Dr Madan Lal and his adoptive father and the relief claimed was the conversion of joint possession into separate possession. In the present suit the plaintiff is seeking possession of the suit properties from a trespasser. In the first case his cause of action arose on the day he got separated from his family. In the present suit the cause of action, namely, the series of transactions which formed the basis of his title to the suit properties, arose on the death of his adoptive father and mother. It is true that both in the previous suit as well as in the present suit the factum and validity of adoption of Dr Madan Lal came up for decision. But that adoption was not the cause of action in the first nor is it the cause of action in the present suit. It was merely an antecedent event which conferred certain rights on him. Mere identity of some of the issues in the two suits do not bring about an identity of the subject-matter in the two suits..........."
(emphasis by Court)
37. It must be remarked at once that Anand Prakash has not at all got an issue framed either in O.S. No. 273 of 1998 that he instituted or the other suit instituted by Jaswant Singh, being O.S. No. 1162 of 1998 to the effect whether the subsequent suit instituted by Jaswant Singh, that is to say, O.S. No. 1162 of 1998 was barred by the provisions of Order XXIII Rule 1(4) CPC or Order II Rule 2 CPC, in consequence of the earlier suit for injunction instituted by Jaswant Singh i.e. O.S. No. 737 of 1996, being withdrawn unconditionally. Not only this issue was not raised, but also this point does not seem to have been argued before both the Courts below. The plea that Anand Prakash raised was one of the bar of res judicata in answer to Jaswant Singh's O.S. No. 1162 of 1998, because of the withdrawal of his earlier O.S. No. 737 of 1996. This plea was indeed argued before the Lower Appellate Court also and repelled on the ground that mere withdrawal of the earlier suit, without an adjudication of the issues involved, does not operate as a bar under Section 11 CPC. It is for the first time before this Court that Anand Prakash has raised a plea of the subsequent suit brought by Jaswant Singh to be barred by the provisions of Order XXIII Rule 1(4) CPC, or in the alternate, under Order II Rule 2.
38. This Court, nevertheless, proceeds to examine the substantial question involved. It has been asserted on behalf of Jaswant Singh that he instituted the suit for permanent injunction, because after possession was delivered to him by the Authority on 04.07.1996, Anand Prakash made an attempt to encroach into a part of the suit property (denoted by letters अ ब स द), shown in the map of the plaint giving rise to O.S. No. 1162 of 1998 by letters क ख ग घ. The said effort was thwarted and the matter reported to the Police. Later on, when the threat at the hands of Anand Prakash ceased, the suit for injunction was withdrawn vide order 03.04.1997. Subsequently, Anand Prakash encroached into the suit property on 20.06.1997 and constructed over a part of the same denoted by letters क ख ग घ in the plaint map annexed to the plaint of O.S. No. 1162 of 1998, necessitating the institution of that suit for declaration and recovery of possession, by a mandatory injunction, from the trespasser.
39. This plea raised on behalf of Jaswant Singh, in the context of the substantial question, has been resisted by Anand Prakash with the learned Counsel appearing on his behalf, pointing out that in the written statement that was filed by Jaswant Singh in the suit instituted by Anand Prakash, prior in point of time, it was stated by Jaswant Singh that possession of the suit property was delivered to him by the Authority on 04.07.1996 and the same was illegally encroached into by Anand Prakash. However, the exact date of the trespass and encroachment has not been indicated, despite the incident occurring months before institution of the suit by Anand Prakash, that is to say, O.S. No. 273 of 1998. The written statement aforesaid was filed on 14.05.1998 in the suit last mentioned and the act of trespass and dispossession are said to have taken place on 13.06.1996. It is urged, therefore, that the absence of the date of the alleged trespass and encroachment by Anand Prakash, make the cause of action set up in the subsequent suit instituted by Jaswant Singh, clearly one that is artificially created to obtain relief, that is otherwise barred with the unconditional withdrawal of the earlier suit brought by Jaswant Singh under Order XXIII Rule 1(4) CPC. Also for the same reason, it is urged on behalf of Anand Prakash that the subsequent suit is barred by Order II Rule 2 CPC, because Jaswant Singh, in his earlier suit being out of possession, asked for an injunction simplicitor, instead of seeking the substantial relief of declaration and recovery of possession that he ought to have done. He has, therefore, brought the present suit, splitting the cause of action, which attracts the bar under Order II Rule 2 CPC.
40. This Court finds that in the absence of a plea being raised, and particularly, an issue being framed about the suit being barred either under Order XXIII Rule 1(4) or under Order II Rule 2 CPC, the parties did not have opportunity to lead evidence on the point. Therefore, the Court is left to judge the worth of the substantial question, going by the pleadings and the record on the face of it. This Court finds that O.S. No. 737 of 1996 was instituted on 08.07.1996 after the attempted trespass on 04.07.1996, and unconditionally withdrawn on 03.04.1997, once the threat ceased. After a short lull, Anand Prakash revived his efforts to trespass and according to Jaswant Singh, trespassed into a part of the suit property on 20.06.1997 i.e. after the first suit was withdrawn. This necessitated the institution of O.S. No. 1162 of 1998 on 07.12.1998. The fact that in the written statement filed by Jaswant Singh in answer to Anand Prakash's O.S. No. 273 of 1998 on 14.05.1998, the date of the accomplished trespass on 20.06.1997 has not been disclosed, cannot be a clincher in Anand Prakash's favour, because he never raised the point before the Courts below and led evidence to show that in fact, he trespassed prior to 20.06.1997 and was in possession when Jaswant Singh withdrew his earlier O.S. No. 737 of 1996 on 03.04.1997. No inference can be drawn against Jaswant Singh about the truth of his case of accomplished trespass on 20.06.1997 merely by the fact that he did not disclose that date in the written statement that he filed in answer to Anand Prakash's O.S. No. 273 of 1998. The first suit, that was instituted on occasion about a threatened invasion of Jaswant Singh's rights by Anand Prakash, was a suit for permanent injunction to protect possession. Once the emergent threat ceased to exist, the suit was withdrawn as the cause of action disappeared. The threat that necessitated the institution of the suit re-surfaced on 20.06.1997, after the withdrawal of the first suit on 03.04.1997 by Jaswant Singh, with Anand Prakash accomplishing his earlier threat by trespassing into the suit property, encroaching a part thereof and constructing upon it. After a period of time, when an amicable settlement to cause the trespasser to withdraw failed, O.S. No. 1162 of 1998 was instituted on the substantial cause of action for a declaration of title based on the sale certificate by the Revenue Authorities in favour of Jaswant Singh and mandatory injunction, directing the trespasser i.e. Anand Prakash to withdraw his illegal possession within a specified time, failing which, the encroachment was sought to be removed through process of Court.
41. In the opinion of this Court, the cause of action in the two suits are distinct and different. They have arisen at different points of time; may be closely placed. In the nature of things, it is not difficult to accept this kind of a happening because on concluded findings of fact recorded by the two Courts below, Jaswant Singh is a purchaser of the suit property, which is all that comprises Khasra No. 472/1, admeasuring 3 biswa, 15 biswansi (567 square yards). It is also a concluded finding of fact recorded by the two Courts below concurrently that Anand Prakash's vendor, Jagannath had no other property, except Khasra No. 472/1 in the locale. This property had been purchased by Jagannath long back in the year 1960 that he mortgaged in favour of the UPFC to secure a loan availed by his son. Upon default by Jagannath's son, this property was put to sale by the UPFC through the Revenue Authorities and purchased in a public auction by Jaswant Singh. Thus, all that Jaswant Singh owned, comprises the suit property, which passed from Jagannath to his hands because of attachment of the same in proceedings for the recovery of loan overdues as arrears of land revenue by the State Authorities, at the instance of the UPFC and an auction sale, where Jaswant Singh purchased it. On facts, the Courts below have not found any other property in the area to belong to Jagannath that he could have privately sold to Anand Prakash. In the background of these concluded facts, as already remarked, a case of attempted trespass, a retreat and then an accomplished trespass by Anand Prakash is not difficult to infer, which in any case the two Courts of fact below have concurrently found.
42. Once the earlier suit brought by Jaswant Singh was based on a different cause of action, the subsequent suit, as already remarked, would not be barred by Order XXIII Rule 1(4) CPC and a fortiori by the provisions of Order II Rule 2, either. In this connection, reference may be made to the decision of a Division Bench of the Karnataka High Court in K.V. Shivakumar and others v. National Institute of Mental Health and Neuro Sciences and others, 2016 SCC OnLine Kar 8037, where it has been held:
"117. The suit O.S. 2457/2003 is filed for a decree of permanent injunction restraining the defendants from interfering with the plaintiff's possession and enjoyment of the suit schedule property. The cause of action for the said suit was a threat of interference by way of putting up construction of the plaint schedule property by taking up a housing project under a joint venture. The cause of action for the present suit is the denial of plaintiff's title and a finding in the earlier proceedings that plaintiff is not in possession. Therefore, the plaintiff was constrained to file the present suit for declaration of title and for possession. Therefore, the subject matter of both the suits are totally different. The cause of action for both the suits are totally different. Even though the plaintiff withdrew the earlier suit without seeking leave of the Court to file a fresh suit and in fact filed the present suit during the pendency of the earlier suit, the bar contained in Order XXIII Rule 1 (4) of CPC is not attracted to the present suit. Therefore, the present suit is not hit by Order XXIII Rule 1 (4) CPC as contended by the defendants. There is no merit in the said contention and the Trial Court was justified in holding that the bar contained in Order XXIII Rule 1 (4) is not attracted to the present suit."
43. To the same effect is the holding of the Andhra Pradesh High Court in Kasarapu Sujatha and another v. Veera Velli Veera Somaiah, 2007 SCC OnLine AP 676. The decision in Kasarapu Sujatha (supra) is very close on facts to the cause of action here. It was held in Kasarapu Sujatha, thus:
34. At the cost of repetition I may state that the earlier suit O.S. No. 168 of 1986 filed by the respondent/plaintiff is only for injunction simplicitor and whereas the subsequent suit O.S. No. 169 of 1994 is for declaration of title, injunction and for recovery of a part of the extent over which structures exist. The respondent/plaintiff asserted that the cause of action for filing the subsequent suit arose in the month of September, 1993 when the appellants/defendants attempted to trespass and put up some constructions. Though the appellants/defendants pleaded that they put up constructions much earlier to 1993, they did not place any material to speak of the structures being in existence prior to 1993. Added to that the first appellant/first defendant who claims to have got Ac. 1.20 guntas towards her share in family settlement did not choose to enter into box to speak out her case. DW. 1 is the husband of the first defendant. He did not place any material on record to show that structures exist as on the date of filing of the suit were made prior to 1993. The trial Court and the lower appellate Court on thorough appreciation of the material brought on record came to the conclusion that the appellants/defendants failed to establish of their putting up constructions over a part of the land soon after the alleged family settlement pending disposal of O.S. No. 440 of 1980. In view of the above discussion, I find that the subsequent suit of the respondent/plaintiff is not barred either under Order 2 Rule 2 or Order 23 Rule 1 of CPC.
44. The decision in Vallabh Das (supra) relied upon by Jaswant Singh, in essence, propounds the principle that a subsequent suit based on a different cause of action, may be related to the same property or may be the same rights, may constitute a different subject matter from the previous litigation. All that is then required to dispel the bar under Order XXIII Rule 1(4) or Order II Rule 2 CPC is that the subsequent suit should be based on a different cause of action than the one involved in the earlier suit.
45. In view of what this Court has found, the substantial question of law is answered in the manner that O.S. No. 273 of 1998, Jaswant Singh vs. Anand Prakash, that was withdrawn without permission to file a fresh suit, does not bar the subsequent suit brought by Jaswant Singh either under Order XXIII Rule 1(4) CPC or under Order II Rule 2, because the two suits are not based on the same cause of action, even though the earlier suit relates to the same property between the same parties.
46. In the result, both the appeals fail and are dismissed with costs throughout. Let separate decrees be drawn up in both the appeals, accordingly.
Order Date :- 20.10.2022 Anoop