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2001 DIGILAW 189 (PNJ)

Gurdip Singh v. Arjan Singh

2001-02-06

V.K.JHANJI

body2001
JUDGMENT V.K. Jhanji, J. - This case has a long chequered history. In fact, it is the third round of litigation. Second round of litigation had gone right upto the Supreme Court. In the third round, legitimate claim of Arjan Singh son of Sunder Singh is sought to be defeated on the plea that his suit is barred under Order 2 Rule 2 and Section 11 of the Code of Civil Procedure. 2. The brief facts are that one Sunder Singh son of Saun Singh was owner in possession of suit land. He had two sons, Arjan Singh and Sarwan Singh and two daughters, Gurnam Kaur and Harnam Kaur. Harnam Kaur died leaving behind her husband and three daughters. The estate of Harnam Kaur is now represented by Rajinder Singh (respondent No. 2 herein). Sunder Singh died in 1979. Upon his death, a dispute arose with regard to his estate. Sunder Singh had two grandsons, Gurdip Singh and Sukhchain Singh sons of Sarwan Singh. They on the basis of Will dated 7.8.1972 alleged to have been executed by Sunder Singh in their favour, got mutation No. 2368 sanctioned in their favour. Arjan Singh son of Sunder Singh, feeling aggrieved of the mutation sanctioned in favour of Gurdip Singh and Sukhchain Singh, filed Civil Suit No. 223 of 1979 for joint possession against them. In the suit, Arjan Singh alleged that his father Sunder Singh during his life time had executed Will dated 9.1.1959 in his favour. In defence, Gurdip Singh and Sukhchain Singh set up Will dated 17.8.1972. The suit was fully contested, Sub-Judge 1st Class, Jagraon, after framing issues regarding execution of Wills and their validity, disbelieved both the Wills and dismissed the suit. While dismissing the suit, Sub Judge 1st Class held that the estate of Sunder Singh shall go to the natural heirs by way of natural succession. Gurdip Singh and Sukhchain Singh filed appeal but it was rejected. After decision of Suit No. 223/1979, mutation in the name of Gurdip Singh and Sukhchain Singh which was earlier sanctioned on the basis of Will dated 17.8.1972, was cancelled and it was sanctioned in favour of natural heirs i.e. two sons, namely Arjan Singh and Sarwan Singh and two daughters in equal shares. Arjan Singh filed an application before the Revenue Authorities for partition. Arjan Singh filed an application before the Revenue Authorities for partition. The Assistant Collector Ist Grade, on 30.9.1983 directed partition of the suit land and declared that all the natural heirs will get 1/4th share in the estate of the deceased. In pursuance of order of partition dated 30.9.1983, symbolic possession was given to all the natural heirs of Sunder Singh on 5.12.1983. 3. Gurdip Singh and Sukhchain Singh feeling aggrieved of mutation dated 22.6.1982 sanctioned in favour of natural heirs and order of partition, filed Civil Suit No. 248 dated 23.10.1982 against the natural heirs of Sunder Singh i.e. Arjan Singh and others for a decree of declaration and in the alternative for permanent injunction that they are owners in possession on the basis of Will dated 18.8.1972 and mutation sanctioned on 22.6.1982 in favour of natural heirs is not valid. They pleaded that Arjan Singh was trying to take possession of 1/4th share and so he and other defendants be restrained from dispossessing them from the suit land except in due course of law. 4. Upon contest by Arjan Singh and others, suit was decreed. Appeal filed by Arjan Singh was partly allowed and suit filed by Gurdip Singh and Sukhchain Singh (plaintiffs of Suit No. 248 dated 23.10.1982) was decreed only to the extent that they shall not be dispossessed from the suit land except in due course of law. The Additional District Judge, Ludhiana in his judgment dated 10.11.1986 clarified that the property of Sunder Singh shall devolve upon his natural heirs according to the provisions of Hindu Succession Act. 5. Undeterred, Gurdip Singh filed Regular Second Appeal No. 453 of 1987 which by a detailed judgment of dated September 3, 1999 was dismissed by this Court. Special Leave Petition was also dismissed by the Honble Supreme Court. It is thereafter that Arjan Singh and Rajinder Singh filed separate suit for possession against Gurdip Singh i.e. Suit No. 307 dated 24.11.1987 out of which this second appeal has arisen, on the basis of mutation which was sanctioned in favour of the natural heirs and also on the basis of partition order dated 30.9.1983 whereby natural heirs were given symbolic possession. Gurdip Singh contested the suit and denied that the plaintiff are owners of suit land or are entitled to the decree for possession. Gurdip Singh contested the suit and denied that the plaintiff are owners of suit land or are entitled to the decree for possession. He also raised the plea of the suit being barred under Order 2 Rule 2 of the Code of Civil Procedure and principle of res judicata. Trial Court decided the issue of ownership in favour of the plaintiffs and held that the estate of Sunder Singh is to devolve on the natural heirs under the Hindu Succession Act. Accordingly, trail Court vide judgment and decree dated 1.2.1994 decreed the suit qua Rajinder Singh alone but denied the right of possession to Arjan Singh by saying that the suit filed by Arjan Singh is barred under Order 2 Rule 2 of the Code of Civil Procedure and principle of res judicata. Against judgment and decree dated 1.2.1994, Arjan Singh preferred first appeal before the Additional District Judge, Ludhiana. Learned Additional District Judge, on re-appreciation of the pleadings of the parties and the evidence, held that the former suit i.e. Suit No. 223 of 1979 and the present suit are based on different cause of action and so it cannot be said that the present suit filed by Arjan Singh is barred by the principle of res judicata or under Order 2 Rule 2 of the Code of Civil Procedure. He also held that dismissing the suit filed by the Arjan Singh would render judgment of the High Court in RSA No. 453 of 1987 as upheld by the Supreme Court in SLP, inoperative and ineffective and would allow Gurdip Singh to retain the suit land as owner meaning thereby that the relief which he failed to get earlier in his own suit, would stand given in the suit filed by Arjan Singh. Resultantly, learned Additional District Judge vide judgment and decree dated 9.2.1996 allowed the appeal and decreed the suit of Arjan Singh as well. Hence this regular second appeal by Gurdip Singh. 6. The only submission of learned counsel appearing on behalf of the Gurdip Singh is that previous Suit No. 223 of 1979 of Arjan Singh was for joint possession and in that suit he omitted to choose the alternate relief of possession and that suit came to be dismissed and so the present suit is barred under Order 2 Rule 2 and under Section 11 of the Code of Civil Procedure. Learned counsel cited judgment of this Court in case Rakha Singh v. Amrit Lal and others, AIR 1984 Punjab & Haryana 47 and Raj Kumar v. Chaman Lal Chopra 1992(1) Shimla Law Journal 388 for the proposition that if the plaintiff omits any portion of the claim which he is entitled to make or omits one of the reliefs in respect of a cause of action, he shall not afterwards be entitled to sue for a part of the claim or relief so omitted. Learned counsel further contended that in the earlier suit Arjan Singh claimed relief of joint possession on the basis of Will dated 9.1.1959 but in the alternative did not take up the plea of being owner to the extent 1/4th share if the Will set up was not upheld and so second suit claiming ownership on the plea that he is owner to the extent 1/4th share is no more available on the principle of res judicata. 7. Against this, learned counsel appearing on behalf of the Pushpinder Singh, who in appeal, has stepped into the shoes of Arjan Singh, contended that in the previous suit filed by Arjan Singh, the Court though did not believe Will dated 9.1.1959 but at the same time, held that the estate of Sunder Singh would devolve on the natural heirs on the basis of natural succession. In the subsequent suit filed by Gurdip Singh and Sukhchain Singh, learned Additional District Judge in his judgment dated 10.10.1986 reiterated that the estate of Sunder Singh shall devolve on natural heirs by natural succession. The only decree passed in the suit filed by Gurdip Singh and Sukhchain Singh was that they will not be dispossessed except in due course of law. The present suit is for taking possession in accordance with law. 8. I have heard the learned counsel for the parties at length and also gone through the record. 9. There is no dispute with the proposition of law down in Rakha Singhs case (supra). Order 2 Rule 2 of the Code of Civil Procedure is based on the principle that the defendant should not be twice vexed for one and the same cause by splitting the claim and the relief but does not preclude a second suit based on distinct and different cause of action. Order 2 Rule 2 of the Code of Civil Procedure is based on the principle that the defendant should not be twice vexed for one and the same cause by splitting the claim and the relief but does not preclude a second suit based on distinct and different cause of action. In Inacio Martins (deceased through LRs.) v. Narayana Hari Naik and others, 1993(3) Supreme Court Cases 123, the Honble Supreme Court while dealing with Order 2 Rule 2 and Section 11 of the Code of Civil Procedure, held that the doctrine of res judicata differs from the rule embodied in Order 2 Rule 2, in that, the former places emphasis on the plaintiffs duty to exhaust all available grounds in support of his claim while the latter requires plaintiff to claim all reliefs emanating from the same cause of action. In Suit No. 223 of 1979 filed by Arjan Singh against Gurdip Singh and Sukhchain Singh, two Wills i.e. Will dated 9.1.1959 set up by Arjan Singh and Will dated 17.8.1972 set up by Gurdip Singh and Sukhchain Singh were in question. Both the Wills were not found to be valid. However, the status of plaintiff Arjan Singh to succeed to the estate of Sunder Singh being one of the natural heirs was settled in his favour. It is on the basis of this finding that the mutation which was earlier sanctioned in favour of Gurdip Singh and Sukhchain Singh was cancelled and mutation was sanctioned in favour of all the natural heirs including Arjan Singh. Partition was effected and symbolic possession was given to all the natural heirs. In Suit No. 248 dated 23.10.1982 filed by Gurdip Singh and Sukhchain Singh, claim was again on the basis of Will dated 17.8.1972 and relief sought was that they be not dispossessed except in due course of law. The Will set up by them was again disbelieved and the only decree passed in their favour was that they will not be dispossessed except in due course of law. The right of natural heirs to succeed to the estate of Sunder Singh was again upheld in the said suit. The cause of action of the present suit is the decree passed in favour of Gurdip Singh and Sukhchain Singh whereby it was held that they cannot be dispossessed except in due course of law. The right of natural heirs to succeed to the estate of Sunder Singh was again upheld in the said suit. The cause of action of the present suit is the decree passed in favour of Gurdip Singh and Sukhchain Singh whereby it was held that they cannot be dispossessed except in due course of law. The present suit is to take assistance of the Court to take possession. Therefore, the present suit is based on different cause of action not founded in the former suit. It may be that the subject matter of the suit is the same very property but the cause of action is distinct and so also the relief. In the previous suit, relief of possession was not claimed whereas in the present suit, claim is for restoration of possession. Accordingly, the present suit is neither barred under Order 2 Rule 2 nor by the principle of res judicata under Section 11 of the Code of Civil Procedure. 10. For the reasons recorded above, this appeal being devoid of any merit is dismissed with costs which are assessed at Rs. 10,000/-. Appeal dismissed.