Punjab-Haryana High Court
Rulda Singh vs Darbara Singh on 19 January, 2012
Author: K.C. Puri
Bench: K.C. Puri
RSA No.1171 of 2011 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1171 of 2011 (O&M)
Date of decision 19.01.2012.
Rulda Singh
...... Appellant.
versus
Darbara Singh
...... Respondent.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
1. Whether Reporters of Local Newspapers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest? Present :- Mr.A.S.Syan, Advocate for the appellant. K.C.PURI. J.
C.M.No.3206 C/II of 2011 There is delay of one hundred and eleven days in re-filing the appeal. The same stands condoned on the allegations made in the application.
MAIN APPEAL RSA No.1171 of 2011 2
2. Rulda Singh plaintiff has directed this appeal against the judgment and decree dated 9.2.2010 passed by Shri Harbhajan Dass Additional District Judge, Patiala vide which the appeal preferred by him against the judgment and decree dated 17.9.2007 passed by Ms. Harpreet Kaur, Civil Judge (Junior Division), Nabha was dismissed.
3. Briefly stated plaintiff has filed the suit under Order 1 Rule 8 CPC in a representative capacity for permanent injunction restraining the defendant his agents, relatives from causing any type of construction in the construction of wall in shamilat land of Ramdasia community situated on the back side of the house of the defendant as fully detailed in the head note of the plaint. The parties to the suit are members of Ramdasia Community. There are about 40/50 houses of Ramdasia Community outside Bouran Gate Nabha. The land measuring about 4 bighas 10 biswas is a shamlat land of Ramdasia Community situated outside Bouran Gate Nabha and is being commonly used by the community. It is further alleged that in July 1991, the defendant and some other persons tried to encroach the suit property, so the plaintiff along with Gurdev Singh filed a suit for permanent injunction in a representative capacity and the same was decreed on 10.1.1994 and after that defendant opened a door towards suit property and tried to encroach the same. The plaintiff along with Gurdev Singh filed a petition under Order 21 Rule 32 CPC and the same was dismissed on 20.1.98. After the dismissal of the petition the defendant opened an other door towards the suit property illegally and forcibly and threatening to encroach the shamlat land of Ramadasia community. Now the plaintiff has collected the material for raising wall on the eastern side of the aforesaid plot and on the RSA No.1171 of 2011 3 backside of the house of the defendant and before the alleged doors opened by the defendant, but the defendant is obstructing to the construction of wall without any legal right or authority. Hence this suit.
4. Notice of the suit was given to the defendant, he appeared and filed the written statement in which he denied that land measuring 4 bighas 10 biswas is Shamlat land of the Ramdasia Community or is being commonly used by the community. No valid decree was ever passed by the Court. The defendants were legally and validly served in the said suit and the judgment and decree having been passed without serving the defendant is null and void and it does not bind them. The defendant has not opened any aperture in the shamlat of the community which is situated away from the house of the defendant and across the street. It is denied that the defendant ever tried to encroach the shamlat land of the Ramdasia Community. The material laying at the spot in the plot of the defendant belongs to the defendant and not to the plaintiff and plaintiff has no right to collect building material and to erect a wall in front of the door of the house of the defendant. All other averments have been denied requesting the Court to dismiss the suit.
5. Replication was filed in which the pleadings of the plaint were reiterated and denying that of the written statement. From the pleadings of the parties the following issues were framed as under:-
1. Whether the plaintiff is competent to file suit under Order 1 Rule 8 CPC? OPP
2. Whether the plaintiff is entitled to injunction as prayed for?OPP RSA No.1171 of 2011 4
3. Whether the plaintiff has got no cause of action?OPD
4. Whether the suit is not maintainable?OPD
5. Whether the plaintiff is in possession of the suit property?OPP
6. Whether the defendant is entitled to special costs U/s 35(a) CPC?OPD
7. Whether proceedings initiated U/s 145, 146 Cr.P.C. Stood terminated? so its effect?OPD
8. Relief
6. In order to prove his case the plaintiff himself appeared as PW- 1, and also examined PW-2 Lachman Dass and PW-3 Jatinder Shah approved draftsman. On the other hand, defendant examined DW-1 Rakesh Kumar, DW-2 Bhupinder Singh Sidhu approved draftsman and defendant himself appeared as DW-3.
7. The learned trial Court, after appraisal of the evidence returned finding on issue No.1 in favour of the plaintiff. Issue Nos 2 and 5 were taken together and were decided against the plaintiffs. Issue Nos, 3, 4, 6 and 7, however, were decided against the defendants. In view of findings on issue Nos.2 and 5, the suit of the plaintiff was dismissed vide judgment and decree dated . 17.9.2007 by Civil Judge (Junior Division), Nabha.
8. Feeling dissatisfied with the judgment and decree dated . 17.9.2007, the plaintiff preferred the first appeal. The said appeal was heard by Shri Harbhajan Dass Additional District Judge, Patiala, who vide his judgment and decree dated 9.2.2010 dismissed the appeal.
9. Still feeling dissatisfied with the aforesaid judgments and RSA No.1171 of 2011 5 decrees, the plaintiff has preferred the present regular second appeal.
10. The appellant in para No.6 of the grounds of appeal has submitted that following substantial question of law have arisen :-
i) Whether the courts below have wrongly dismissed the suit of the appellant on the ground of resjudicata as the two suits are different and there is different prayer ?
11. Learned counsel for the appellant has submitted that the suit property is the property owned by Balmiki community and is being kept for common purposes. There is a street and other passage towards eastern side as well as on the western side. The main municipal street also adjoins the shamlat deh. It is further contended that earlier suit was in respect of restraining the defendants from encroaching from the shamlat deh from interfering in the construction of boundary wall around the shamlat land. So, prayer has been made for acceptance of the appeal and for decreeing the suit of the plaintiff
12. I have carefully considered the said submission but do not find any force in that submission.
13. The learned trial Court has observed that in the earlier suit it was held that property is used commonly by the members of Ramdasia community including the parties to the suit. So, it was held by the trial Court that plaintiff cannot again file the suit for the same relief. The plaintiff has himself pleaded that plaintiff along with Gurdev Singh filed an application under Order 21 Rule 32 CPC and the same was dismissed on 20.1.1998. Thereafter, the present suit has been filed. So, both the Courts below have rightly concluded that the present suit is not maintainable that being a finding of fact cannot be interferred in the regular second appeal. RSA No.1171 of 2011 6
14. So, I have no hesitation in holding that no substantial question of law has arisen in the present regular second appeal.
15. Consequently, the appeal is without any merit and the same stands dismissed.
16. A copy of this judgment be sent to the trial Court for strict compliance.
( K.C. PURI )
JUDGE
January 19 , 2012
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