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2000 DIGILAW 519 (PNJ)

Nahar Singh v. Kaka Singh

2000-05-15

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - This is a defendants appeal and has been directed against the judgment and decree dated 23.9.1999, passed by the Court of Additional District Judge, Fatehgarh Sahib, who affirmed the judgment and decree dated 4.5.1998, passed by the Court of Civil Judge (Jr. Division), Fatehgarh Sahib, who decreed the suit of the plaintiff-respondent Kaka Singh son of Budh Singh for permanent injunction restraining the present appellants from interfering in any manner in the exclusive peaceful, cultivating possession of the plaintiff over the land, as fully detailed in the heading of the plaint situated in the revenue estate of village Peer Jain Tehsil and District Fatehgarh Sahib. 2. The case set up by the respondent-plaintiff in the trial Court was that he was in exclusive possession of the suit land comprised in Rect. No. 29 Khasra No. 8 min (4-14) and Rect. No. 18, Khasra No. 14(8-0), situated in village Peer Jain and that the defendants had no right to interfere in his possession till the partition is effected between the parties thorough Court of competent jurisdiction. The plaintiff pleaded that defendants are also recorded in possession of different Khasra numbers. Mohinder Singh defendant is recorded in exclusive possession of the land comprised in Khatoni No. 23, defendant Nahar Singh has been recorded in possession over the land comprised in Khatoni No. 24 and Sucha Singh defendant has been recorded in exclusive possession over the land comprised in Khatoni No. 21. The plaintiff has also installed electric motor bearing A/C No. R-2-109 in his name in the suit land. It was further averred by the plaintiff that earlier he filed a suit for injunction but the same was withdrawn by him on account of compromise dated 4.10.1995. Again the defendants gave him the threat to interfere in his possession. Hence the present suit has been filed by the plaintiff. 3. Notice of the suit was given to the defendants. Defendants admitted that the parties to the suit are the co-sharers. Other allegations were denied by the defendants and it was submitted that Khasra No. 14 of Rect. No. 18 is not in exclusive possession of the plaintiff. Out of this Khasra Number 1 Kanal on the Eastern side is in possession of Mohinder Singh defendant, whereas, 1 Kanal 8 Marlas on the same side is in possession of Nahar Singh defendant. No. 18 is not in exclusive possession of the plaintiff. Out of this Khasra Number 1 Kanal on the Eastern side is in possession of Mohinder Singh defendant, whereas, 1 Kanal 8 Marlas on the same side is in possession of Nahar Singh defendant. Similarly, out of Khasra No. 8 min of Rect. No. 29, area measuring 1 Kanal 14 marlas on the Eastern side of said Khasra number is in possession of Mohinder Singh defendant and the intervening boundary of the said Khasra number is beyond the said 1 Kanal 14 marlas. On the Western side and on the Eastern side the land is in possession of Mohinder singh including the said 1 Kanals 14 Marlas. While assailing the filing of the earlier suit, it was averred that suit was withdrawn by the plaintiff unconditionally, and therefore, it estopped the plaintiff from filing the second suit on the same set of facts. It was further averred by the defendants that plaintiff did not approach the civil Court with clean hands. He had suppressed the material facts and, therefore, he is not entitled to the relief of injunction. 4. The plaintiff filed a rejoinder to the written statement of the defendants in which he reiterated the allegations made in the plaint by denying those made in the written statement. He stated that he withdrew the earlier suit on account of the compromise which was executed on 4.10.1995 in which both the parties agreed that they will withdraw all the civil suits pending in the Courts and defendant will withdraw his suit first. In compliance with the said agreement, Nahar Singh defendant and Jarnail Singh withdrew the suit on 10.10.1995. The process of partition of the entire Khewat including the suit land was almost likely to be completed but the defendants backed out from the partition. Now, again they are threatening to dispossess him from the land which is in his possession. 5. From the above pleadings of the parties, the trial Court framed the following issues :- 1. Whether the plaintiff is entitled for permanent injunction prayed for ? OPP 1A. Whether the suit is barred under Order 23 C.P.C. ? OPD 2. Relief. 6. Parties led evidence in support of their case. The learned trial Court vide judgment and decree dated 4.5.1998 decreed the suit of the plaintiff- respondent as prayed for. 7. Whether the plaintiff is entitled for permanent injunction prayed for ? OPP 1A. Whether the suit is barred under Order 23 C.P.C. ? OPD 2. Relief. 6. Parties led evidence in support of their case. The learned trial Court vide judgment and decree dated 4.5.1998 decreed the suit of the plaintiff- respondent as prayed for. 7. Aggrieved by the judgment and decree of the trial Court, defendants filed the first appeal before the Court of Additional District Judge, Fatehgarh Sahib and the appeal of the defendants was dismissed for the reasons given in paras No. 9 to 13 of the judgment which are reproduced as under :- "9. There is no denying the fact that the plaintiff and the defendants are the co-sharers in the land measuring 390 Kanals 4 marlas including the suit land. Copy of jamabandi Ex.P.1, in this respect is on the record. This copy of jamabandi Ex.P.1 further transpires that the plaintiff Kaka Singh is in possession of 99 Kanals 2 Marlas of land including the suit land. Copy of Khasra Girdawari Ex. P2, further reveals that plaintiff is in possession of the suit land. 10. The defendants-appellants do not dispute the possession of the plaintiff over the suit property except Rect. No. 18, Khasra No. 18, Khasra No. 14(8-0) and Rect. No. 29, Khasra No. 8 min (4-14) and urged that out of Rect. No. 18, Khasra No. 14 Mohinder Singh is in possession of 1 Kanal 1 marla of land on the Southern-Eastern side of this Khasra number and Nahar Singh is in possession of 1 Kanal 3 marlas of land on the Western-Southern side of this Khasra number. Similarly, Mohinder Singh is in possession of 1 Kanal 2 marlas of land out of Rect. No. 29, killa No. 8 min (4-14) on the Eastern-Northern side of this Khasra number. He has mainly placed reliance on the copy of Nishandehi Ex. D.1, conducted by Shri Balwinder Singh, Field Kanungo, Brass, on 7.1.1998. Similarly, Mohinder Singh is in possession of 1 Kanal 2 marlas of land out of Rect. No. 29, killa No. 8 min (4-14) on the Eastern-Northern side of this Khasra number. He has mainly placed reliance on the copy of Nishandehi Ex. D.1, conducted by Shri Balwinder Singh, Field Kanungo, Brass, on 7.1.1998. The counsel for the appellants have taken me through the statement of Shri Balwinder Singh, Field Kanungo, Brass, who was examined by him as DW3 and have urged that it has been proved by Balwinder Singh, Field Kanungo, that Jaspal Singh, Major Singh sons of Mohinder Singh are in possession of 1 kanal 1 marla of land out of Khasra No. 18 18//14 and 1 kanal 2 marlas of land out of Khasra No. 29//8 min (4-14). Nahar Singh is in possession of 1 kanal 3 marlas of land out of Khasra No. 18//14(8-0). Having given my thoughtful consideration to these arguments advanced on behalf of the appellants, I do not find any merit in the same for the following reasons :- 11. First of all, the evidence led by the defendants is beyond the pleadings. The defendant has stated in his statement that Mohinder Singh is in possession of 1 kanal of land on the Eastern side of Khasra No. 18//14(8-0) and 1 kanal 8 marlas out of this khasra number is in possession of Nahar Singh defendant. They further pleaded that Mohinder Singh is in possession of 1 kanal 14 marlas on the Eastern side of 29//8. However, evidence led by defendants is contrary to the pleadings. In their pleadings, the defendants have proved that Mohinder Singh is in possession of 1 kanal 1 marla and 1 kanal 2 marla respectively out of the above referred khasra number and Nahar Singh is in possession of 1 kanal 3 marlas out of khasra No. 18//14. It is also well established by now that no amount of evidence beyond the pleadings can be taken into consideration. 12. So far as the report Ex. DA and the deficiency plan prepared by Balwinder Singh PW8, are concerned, the same do not appear to have been prepared at the spot by PW3 and the same have been prepared while sitting at home according to the wishes of the party in whose favour he was appearing. A critical examination of Ex. So far as the report Ex. DA and the deficiency plan prepared by Balwinder Singh PW8, are concerned, the same do not appear to have been prepared at the spot by PW3 and the same have been prepared while sitting at home according to the wishes of the party in whose favour he was appearing. A critical examination of Ex. DA reveals that out of all the fifteen lines written by the kanungo, he recorded eight or nine lines in the normal way. There is equal inter spacing in these lines but the last five lines have a narrow inter spacing. This manner of writing clearly throws doubt on the conduct of Balwinder Singh, Field Kanungo. It appears that Balwinder Singh, Field Kanungo, procured the signatures of the witnesses on the blank papers and later on he scribed the report over it. Had he prepared the report according to the spot and at the spot then he would have scribed the report in the normal manner and would not have tightened the lines for making convenient for himself to complete the report above the signatures. The word "BAKI" written in the last line seems to have been written over the signature and a space has been left between the work "BAKI" and the word "Number" shows that the signatures of Harinder Singh Patwari were already there before the report was scribed. Thus on critical analysis of the report Ex. DA, it appears that Balwinder Singh PW3 had obtained the signatures of the witnesses earlier on a blank paper and prepared the report subsequently. Furthermore, PW3 Balwinder Singh while making demarcation did not comply with the instructions issued by the Financial Commissioner (Revenue) Punjab. He himself did not verify about the pucca Thadas from where he was to made the demarcation. He also did not measure the surrounding khasra numbers in order to demarcate khasra No. 29//8 and khasra No. 18//14. The deficiency plan does not show as to which khasra numbers are situated around the above referred two khasra numbers. As such the demarcation report Ex. DA and the deficiency plan Ex. DB are not worth reliance and do not help the case of the defendants. 13. The deficiency plan does not show as to which khasra numbers are situated around the above referred two khasra numbers. As such the demarcation report Ex. DA and the deficiency plan Ex. DB are not worth reliance and do not help the case of the defendants. 13. It has been next contended on behalf of the appellants that since earlier suit filed by the plaintiff has been dismissed as withdrawn, therefore, he is estopped to file fresh suit on the same cause of action. Hence the findings returned by the trial Court on issue No. 1-A, deserve to be reversed. In this regard he has referred me to the copy of the plaint Ex. D1, copy of the written statement Ex. D2, copy of the replication Ex. D3, copy of the order Ex. D4, passed in suit No. 1597 of 11.9.95, titled as Kaka Singh v. Sucha Singh, was for permanent injunction and the same was dismissed as withdrawn. The defendants have not brought on record any document in order to show as to under what circumstances the suit was withdrawn. The plaintiff has specifically pleaded that as the parties had compromised and promised that they will withdraw the suits filed against each other, therefore, he had withdrawn the suit filed by him and Nahar Singh had also withdrawn the suit filed by him. The plaintiff while appearing in the witness box as (PW-1) has also stated that since the parties were compromising, therefore, he had withdrawn the suit. It has also been admitted by Nahar Singh DW1 that both the parties had filed suits for permanent injunction against each other and both of them had withdrawn these suits. In any case, it cannot be denied that no suit between the parties with regard to the same subject matter has been decided on merits. The earlier suit filed by Kaka Singh was merely for injunction and was not for establishing any title over the property. Both the parties are co-sharers. When Nahar Singh had threatened to interfere in possession of Kaka Singh, the plaintiff had to file the suit and when the parties were trying to reach amicable settlement then they withdrew the suits filed by them against each other and when a fresh cause of action accrued to the plaintiff then he preferred the instant suit. When Nahar Singh had threatened to interfere in possession of Kaka Singh, the plaintiff had to file the suit and when the parties were trying to reach amicable settlement then they withdrew the suits filed by them against each other and when a fresh cause of action accrued to the plaintiff then he preferred the instant suit. The cause of action in a suit for permanent injunction is continuous whenever a threat is given to a party by its adversary for the invasion of the rights of the former then the former can file the suit against the latter and in such cases no permission for filing a fresh suit on the same cause of action is required at the time of its withdrawal. The counsel for the appellants has relied upon an authority Sadhu Singh v. Kaur Singh, 1992 Civil Courts Cases 117 (P&H) to contend that when once the suit has been withdrawn or dismissed in the absence of the plaintiff then he is debarred from filing the fresh suit on the same cause of action. I have gone through this authority. The same is on different facts and is not applicable on the facts of the instant case. Under these circumstances, this Court is of the considered opinion that the findings returned by the trial Court on issue No. 1-A, are hereby affirmed". 8. The defendants are still not satisfied with the judgments of the Courts below. Hence the present Regular Second Appeal has been filed which I am disposing of in limine after hearing Shri S.N. Chopra, Advocate, who appeared on behalf of the appellants. 9. The first argument raised by the learned counsel for the appellate is that earlier the suit of the plaintiff was dismissed. He has never sought the permission in order to file a fresh suit. Resultantly, the second suit on the same cause of action should be dismissed. He further submitted that even if it is assumed for the sake of arguments that the cause of action, if any, which had arisen to the plaintiff was successive of the second suit, still the second suit of the plaintiff is required to be dismissed. Resultantly, the second suit on the same cause of action should be dismissed. He further submitted that even if it is assumed for the sake of arguments that the cause of action, if any, which had arisen to the plaintiff was successive of the second suit, still the second suit of the plaintiff is required to be dismissed. In support of his contention, learned counsel for the appellants relied upon 1992 Civil Court Cases 117, Sadhu Singh v. Kaur Singh, wherein, it was held by the learned Single Judge as follows :- "The instant suit was for permanent injunction to restrain the defendant from digging watercourse in the land of the plaintiff. The dismissal of the suit under the provision of Order 9 Rule 8 of the Code will bar the second suit under Order 9 Rule 9 of the Code and the principles of recurring cause of action will be inapplicable." 10. Reliance was also placed on 1984(II) All India Land Laws Reporter 230, Ram Sarup v. Sunder and others and my attention has also been invited to paras No. 7 and 8 of the judgment which can be safely reproduced as follows :- "The argument of Shri K.C. Puri, learned counsel for the plaintiff- appellant is that there is a recurring cause of action in claiming partition and if the plaintiff was not wanting partition in the earlier suit he can do so now. Reliance is placed on Abdul Majid Khan son of Manebubukha v. Mahamudabt wife of Bahadurkha, AIR 1949 Nagpur 366. There is no quarrel with the proposition that a co-sharer may obtain partition whenever he chooses and similarly a partner may seek dissolution of partnership whenever he chooses. If he withdraws such a suit, fresh suit would not be barred. To illustrate, if the defendants admit that the property is joint and similarly in the case of dissolution of their partnership, the defendants admit that all of them are partners, the withdrawal of the suit would not bar the subsequent suit, because of the recurring cause of action. If he withdraws such a suit, fresh suit would not be barred. To illustrate, if the defendants admit that the property is joint and similarly in the case of dissolution of their partnership, the defendants admit that all of them are partners, the withdrawal of the suit would not bar the subsequent suit, because of the recurring cause of action. However, if all the defendants in both the sets of cases or some of them pleaded that the plaintiff is not co- sharer or is not partner or that the property is not of Hindu undivided family and belongs to them exclusively and in spite of those pleas the suit is got dismissed as withdrawn the subsequent suit for partition or for dissolution of partnership would be barred under Order 23 Rule (3) of the Code, because in such a situation there is a dispute between the parties whether the plaintiff is entitled to claim partition or seek dissolution of partnership. As already noticed if the defendants were to admit then there will be no dispute as to the right of the plaintiff whether to claim partition or to claim dissolution of partnership. In the present case it was clearly stated by the concerned defendants in the earlier suit that the property was exclusively owned by Sunder and, therefore, he had authority to make the gift and the gift was good. Hence I endorse the finding of the Court below that the matter is covered by Order 22 Rule 3 of the Code. 8. In order to avoid applicability of Order 23 Rule 1(3) of the Code the plaintiff pleaded that the earlier suit was withdrawn because of some compromise. If the compromise had been recorded in writing and it formed part of the order by which the suit was withdrawn, then matter would have been different, and the parties would have been bound by those terms. Here it was just a plea which did not find support from the evidence and, therefore, in the absence of any agreement of the contrary the second suit would be clearly barred". 11. After considering the first submission raised by the counsel for the appellants, I am of the considered opinion that this argument is not acceptable to this Court. The case set up by the plaintiff was that earlier suit was dismissed as withdrawn on the basis of the compromise dated 4.10.1995. 11. After considering the first submission raised by the counsel for the appellants, I am of the considered opinion that this argument is not acceptable to this Court. The case set up by the plaintiff was that earlier suit was dismissed as withdrawn on the basis of the compromise dated 4.10.1995. It was agreed upon between the parties that they would withdraw their suits pending before the civil Courts. So much so Nahar Singh and Jarnail Singh withdrew their suits. The present defendants backed out from the partition which was almost likely to be completed before the revenue authorities. Present is a suit for injunction and the case set up by the plaintiff is that the two Khasra Numbers 8 and 14 measuring 12 Kanals 14 marlas are in his possession in the capacity of a co-sharer and his possession should not be disturbed till the land is partitioned by meets and bounds. It is the basic principle of law that a co-sharer in possession is entitled to retain his possession till he is evicted in due course of law. As and when the possession of a co-sharer is disturbed by his other co-sharers, it furnishes a successive cause of action and injunction suit could not be dismissed on the mere ground that earlier such suit was withdrawn by the party. Every threat to the rights of a co-sharer will furnish a fresh cause of action and in these circumstances, it cannot be held that the present suit is barred by the principles of Order 2 Rule 2 C.P.C. or under Order 23 Rule 4 CPC or under Section 11 C.P.C. 12. On merits, it was argued by the counsel for the appellants that both the Courts wrongly ignored the report of the Local Commissioner. According to Shri Chopra, the defendants made an application before the Trial Court for appointment of a Local Commissioner in order to find out whether the Khasra Number in dispute is in possession of the plaintiff or is in the possession of the defendants. He also tried to draw my attention to the statement of the plaintiff and according to Mr. Chopra the plaintiff has also admitted the possession of the defendants with regard to some area comprising in Khasra Nos. 8 and 14 of Rect. Nos. 29 and 18 respectively. He also tried to draw my attention to the statement of the plaintiff and according to Mr. Chopra the plaintiff has also admitted the possession of the defendants with regard to some area comprising in Khasra Nos. 8 and 14 of Rect. Nos. 29 and 18 respectively. He further submitted that the Courts below committed illegality in granting the injunction with respect to that area which was in the possession of the defendants. He relied upon the report of the Kanungo who stated that part of the land forming part of Khasra Numbers in dispute is in possession of the defendants. I have considered this submission and in my opinion, this submission is devoid of merit and is not acceptable to this Court. Concurrent finding of fact with regard to possession over the suit land has been given by the Courts below. That concurrent finding of fact which is based on proper appreciation of evidence should not be disturbed in the Regular Second Appeal. 13. Be that as it may, let us consider whether the defendants have been able to make out any case or not ? As I stated above, main plank of the argument of Mr. Chopra was that the demarcation report Ex. D.1 conducted by Shri Balwinder Singh, Field Kanungo on 7.1.1988 should be relied upon and according to this demarcation report Jaspal Singh, Major Singh are in possession of 1 Kanal 1 Marla of the land of Khasra No. 14 Rect. No. 18 and area 1 Kanal 2 Marlas out of the land out of Khasra No. 8 Rect. No. 29 and Shri Nahar Singh is in possession of the land measuring 1 Kanal 3 Marlas out of Khasra No. 14 of Rect. No. 18. 14. In para No. 12 of its judgment, the first appellate Court meticulously examined the report of the Kanungo and remarked that out of all the fifteen lines written by the Kanungo, he recorded eight or nine lines in the normal way. There is equal inter spacing in these lines but the last five lines have a narrow inter spacing. This manner of writing clearly throws doubt on the conduct of Balwinder Singh, Field Kanungo. It appears that Balwinder Singh, Field Kanungo procured the statement of the witnesses on the blank papers and latter on he scribed the report over it. There is equal inter spacing in these lines but the last five lines have a narrow inter spacing. This manner of writing clearly throws doubt on the conduct of Balwinder Singh, Field Kanungo. It appears that Balwinder Singh, Field Kanungo procured the statement of the witnesses on the blank papers and latter on he scribed the report over it. Had he prepared the report according to the spot and at the spot, then he would have scribed the report in the normal manner and he would have tightened the lines for making convenient for himself to complete the report above the signatures. The word "BAKI" written in the last line seems to have been written over the signatures and a space has been left between the word "BAKI" and the word Number shows that the signatures of Harinder Singh Patwari were already there before the report was scribed. Thus, on critical analysis of the report Ex. DA, it appears that Balwinder Singh PW3 had obtained the signatures of the witnesses earlier on a blank paper and prepared the report subsequently. 15. This is a finding of fact. If the so-called demarcation conducted by Shri Balwinder Singh are farce how any benefit can be granted to the defendants about the observation made by Shri Balwinder Singh in that report. Such farcical reports are meaningless. 16. It was then submitted by the learned counsel for the appellant that the plaintiff has admitted the possession of the defendants over some area out of the disputed two Khasra Numbers and atleast the possession of the defendants should be protected with regard to that piece of land. He submitted that the Court has ample power to mould the relief in such a manner under Order 7 Rule 7 C.P.C. The counsel wanted to convey that since plaintiff Shri Kaka Singh was not in exclusive possession of the entire two Khasra Numbers, therefore, his suit should fail with regard to that area which was not in his possession. In support of his contention learned counsel for the appellant drew my attention to the statement of Shri Kaka Singh, which can be reproduced as follows :- "I am not in possession of the land in which is the motor of Mohinder Singh and nor there shall be in my possession. The motor which adjoins Khasra No. 14 is of Mohinder Singh. The motor which adjoins Khasra No. 14 is of Mohinder Singh. Adjoining to the motor of Mohinder Singh, there is sugarcane crusher of Mohinder Singh. That is in my land and that is mine which is in Khasra No. 14. There does not adjoin any sugarcane crusher of Mohinder Singh and that this at a distance of 10/15 karms from my motor which I run with my motor, engine and patta. I have no objection if the Kanungo goes to the spot and demarcates the Khasra number in which the motor of Mohinder Singh is situated. The above said motor which I refer the same is at a distance of 10/15 karams from the motor of Mohinder Singh. I have no objection if there is demarcation with regard to the land of sugarcane crusher". 17. The reading of the above would show that Shri Kaka Singh has not admitted the possession of Mohinder Singh over khasra Nos. 8 and 14 of Rect. Nos. 29 and 18 respectively. The statement of a person has to be read as a whole and not in isolation. It was then submitted on behalf of the appellant that trial Court wrongly rejected the application of the defendants for the appointment of the Local Commissioner to demarcate the Khasra numbers 8 and 14 inspite of the fact that plaintiff had no objection and this aspect of the case was even conceded by Shri Kaka Singh plaintiff in his statement by deposing that he had no objection if there was demarcation with regard to the land of sugarcane crusher. 18. The argument is not acceptable to the Court. The trial Court rejected the application of the defendants. The defendants did not sit silent. They applied to the Kanungo for the demarcation of the Khasra Numbers. Regarding the conduct of Balwinder Singh Kanungo, I have already remarked above that the report Ex. DA(D1) is a farce. It is a convenient document manipulated by the defendants in connivance with the Kanungo. It loses its significance. The evidence establishes that the parties are co-sharers with regard to the Khasra Numbers in dispute. The plaintiff is enjoying the same. The property has not been partitioned so far by meets and bounds and a co-sharer in a peaceful possession is entitled to retain his possession and he can enjoy that area which is in his possession in the capacity of a co-sharer. The plaintiff is enjoying the same. The property has not been partitioned so far by meets and bounds and a co-sharer in a peaceful possession is entitled to retain his possession and he can enjoy that area which is in his possession in the capacity of a co-sharer. 19. I have considered all the pros and cons of this appeal and find it without any merit and dismiss the same in limine. No order as to costs. Appeal dismissed.