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2001 DIGILAW 689 (PNJ)

Arjan Singh v. Babu Ram

2001-07-16

R.L.ANAND

body2001
JUDGMENT R.L. Anand, J. (Oral) - This is defendants appeal and has been directed against the judgment and decree dated 6.8.1980 passed by the Court of Additional District Judge, Ambala, who allowed the appeal of the plaintiff- respondent by setting aside the judgment and decree dated 12th January, 1979 passed by the Court of Sub Judge IInd class, Ambala City who dismissed the suit of the plaintiff-respondent Shri Babu Ram. 2. The brief facts of the case are that plaintiff purchased the Bara measuring 55 feet x 40 feet from Smt. Jagiro and Bachni daughters of Bir Singh vide sale deed dated 25.6.1974 for a sum of Rs. 2000/- and also got possession of the property. It is further alleged by the plaintiff that the defendant Shri Arjan Singh took the possession of the Bara unauthorisedly and became illegal owner on 13.1.1975. Resultantly, earlier the plaintiff filed a suit for injunction but the suit was dismissed as withdrawn with permission to file a fresh one on the same cause of action. Therefore, he has filed the present suit for possession of the said Bara. 3. The suit was contested by the defendant on the plea that since the plaintiff did not pay the costs to the defendant before filing the present suit for possession therefore, the present suit is void ab initio. It was further alleged by the defendant that Smt. Jagiro and Bachni were never in possession of the property and they never delivered the possession to the plaintiff- respondent and, as such, they had no right to sell the property. The defendant is in possession of the property for the last more than 33 years before the filing of the suit as possession was adverse, therefore, the decree for possession could not be granted. 4. From the pleadings of the parties, the trial Court framed the following issues : 1. Whether the plaintiff is the owner of the property in dispute as alleged ? 2. Whether the plaintiff is in possession of the property in dispute ? OPP 3. Whether the plaintiff is estopped from filing the present suit as alleged ? OPD 4. Whether the defendant has become owner of the property in dispute by adverse possession ? OPD 5. Whether the plaint is defective as alleged in the written statement ? OPD 6. Relief. 7. OPP 3. Whether the plaintiff is estopped from filing the present suit as alleged ? OPD 4. Whether the defendant has become owner of the property in dispute by adverse possession ? OPD 5. Whether the plaint is defective as alleged in the written statement ? OPD 6. Relief. 7. Whether the plaint is properly valued and stamped for purpose of court fee and jurisdiction ? OPP 8. Whether the plaintiff has been dispossessed from the property in dispute on 13.1.1975 as alleged ? OPP 8-A. Whether the suit is liable to be dismissed for the grounds mentioned in the additional plea Nos. 7 and 8? The parties were given opportunities to lead evidence in support of their case and on the conclusion of the proceedings, the trial Court vide Judgment and decree dated 12th January, 1979 dismissed the suit. Aggrieved by the judgment and decree of the trial Court, Shri Babu Ram plaintiff filed the first appeal in the Court of Additional District Judge, Ambala who allowed the appeal and set aside the judgment and decree of the trial Court and decreed the suit of the plaintiff-respondent. Not satisfied with the judgment and decree of the first appellate court, the defendant has come in the High Court by way of regular second appeal. 5. I have heard the learned counsel for the parties and with their assistance, have gone through the record of the case. 6. Learned counsel for the defendant-appellant submitted that the suit of the plaintiff-respondent for possession was hit by the provisions of Order 2, Rule 2 Civil Procedure Code. Supplementing his argument, the learned counsel for the appellant submitted that earlier the plaintiff-respondent filed a suit for injunction on 14th January, 1975. The defendant took a specific objection that the plaintiff is not in possession of the property. In view of the objection taken by the defendant, the plaintiff opted to withdraw the suit in order to file a fresh one on the same cause of action. The prayer of the plaintiff was granted and it was however ordered by the learned Sub Judge IInd Class, Ambala that the plaintiff may file a fresh suit on the same cause of action subject to payment of Rs. 25/- as costs to the defendant before filing the present suit. 7. The prayer of the plaintiff was granted and it was however ordered by the learned Sub Judge IInd Class, Ambala that the plaintiff may file a fresh suit on the same cause of action subject to payment of Rs. 25/- as costs to the defendant before filing the present suit. 7. On the contrary, the learned counsel appearing on behalf of the plaintiff-respondent submitted that the defendant-appellant had never taken a plea before the first appellate Court or before the trial Court that the suit of the plaintiff is barred under Order 2, Rule 2 CPC and, therefore, it is not open to defendant in the High Court to take this plea. I partially agree with the contentions raised by the learned counsel for the respondent that the defendant has not taken the specific plea with regard to the provisions of Order 2, Rule 2 C.P.C. but a legal plea can always be taken by the litigant in the High Court. The record of the case shows that it is the specific case of the plaintiff-respondent that the defendant un-authorisedly took possession of the Bara on or about 13.1.1975. It will be proper to me to refer to the pleadings of the plaintiff which runs as follows: That defendant on or about 13th January, 1975 unauthorisedly took possession of the Bara and constructed a Chhatra (Kotha) shown red in the site plan attached with the plaint and the plaintiff had filed suit against the defendant earlier also which was withdrawn from the Court of Shri K.K. Aggarwal, Sub Judge Ist Class, Ambala City with the permission to file a fresh suit on the same cause of action as defendant had taken possession of the Bara in dispute forcibly and the suit for permanent injunction against the defendant could not be maintained and hence the suit for possession was filed. Thus, the reading of the above would show that it is a specific case of the plaintiff-respondent that he was dispossessed from the Chhatra (Kotha) in question on or about 13th January, 1975. The earlier suit was filed by the plaintiff-respondent on 14th January, 1975. This suit was dismissed as withdrawn with permission to file a fresh one on the same cause of action, clearly meaning thereby that on 14th January, 1975 the plaintiff was not in possession of the property. The earlier suit was filed by the plaintiff-respondent on 14th January, 1975. This suit was dismissed as withdrawn with permission to file a fresh one on the same cause of action, clearly meaning thereby that on 14th January, 1975 the plaintiff was not in possession of the property. In these circumstances, what are the rights of the plaintiff ? If the plaintiff on the day of the filing of the earlier suit i.e. 14th January, 1975 he could file the suit for possession and he has not done so, what is the effect of that omission on the present suit ? In my opinion, a specific finding should come from both the courts below as to whether the suit of the plaintiff-respondent is barred by the principles of Order 2, Rule 2 C.P.C. Similarly, the trial Court shall also adjudicate what is the effect of the Order dated Ist March, 1975 passed by the court of Sub Judge Ist Class Ambala in Suit No.13 of 1975 which was instituted on 14.1.1975 and was withdrawn on 1.3.1975 on the present suit. 8. Resultantly, I allow this appeal, set aside the judgment and decree of both the Courts below and direct the trial Court to frame a specific issue "whether the suit of the plaintiff is barred under Order 2, Rule 2 Civil Procedure Code ? "The onus of this issue will be upon the defendant. It will be open to the Court to give a fresh finding on all the issues which were earlier framed by it. Directions are also given to the trial Court that it will not give any opportunity to any of the parties to lead any evidence on the additional issue under Order 2, Rule 2 C.P.C. which may be framed at his own level. He shall decide the suit afresh within two months from the receipt of copy of this Order. Nothing stated herein shall be taken as an expression of opinion on the merits of the suit. The parties, through their counsel, are directed to appear before the trial Court on 1.8.2001. Registry is directed to send the records of this case forthwith. Appeal allowed.