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2002 DIGILAW 929 (RAJ)

Govind Singh v. Mahadev

2002-05-03

H.S.PUNIA, RASHMI PRIYADARSHINI

body2002
PRIYADARSHINI, Member – This is a second appeal under Section 224 of the Rajasthan Tenancy Act, 1955 (In short ``the Act) is directed against the judgment and decree passed by Revenue Appellate Authority, Bikaner dated 13.10.95, whereby the first appeal preferred by the appellant Govind Singh and respondents No. 3 to 8 was dismissed. (2). The brief facts giving rise to this appeal are that father of the appellant filed a suit for declaration and permanent injunction under Section 88 and 92A of the Act against the respondents No. 1 & 2 with the averment that the land bearing khasra No. 14 area 69.19 bighas situated at Vill. Devasar is in cultivatory possession of the plaintiff for the last 40 years and this land was also in possession and cultivation of the plaintiff during the settlement operation Smt. 2005 and therefore, the plaintiff has become khatedar tenant of the land. It was further alleged that the defendants tried to occupy the land alleging that the land in dispute has been allotted to them. Since the plaintiff was khatedar tenant of the land in dispute it could not be allotted to the defendants. The defendants contested the suit by way of written statement and it was alleged that the plaintiff was never in possession of the land in dispute and this land is in possession of the defendants and it was allotted to the defendants in accordance with the law. The plaintiff had no right to acquire khatedari rights for the disputed land. It was also alleged that the plaintiff filed a suit No. 36/65 which was dismissed on 30.9.67 and it was held that the plaintiff was not in possession of the land and the said judgment operates as res- judicata in the present suit. Therefore, suit filed by the plaintiff was barred by the principle of res-judicata. The learned trial Court framed five issues on the pleadings of the parties and issue No. 2 was tried as preliminary issue being a legal issue which reads as under. ``Whether the judgment passed in previous suit No. 36/65 operates as res-judicata." (3). Therefore, suit filed by the plaintiff was barred by the principle of res-judicata. The learned trial Court framed five issues on the pleadings of the parties and issue No. 2 was tried as preliminary issue being a legal issue which reads as under. ``Whether the judgment passed in previous suit No. 36/65 operates as res-judicata." (3). The learned trial Court heard the arguments of the parties on issue No. 2 and this issue was decided against the plaintiff and it was held that subsequent suit filed by the plaintiff is barred by explanation-IV to Section 11 and Order 2 Rule 2 of CPC and on that basis suit filed by the appellants father was dismissed vide judgment dated 7.6.83 Aggrieved by the judgment and decree passed by the trial Court, the plaintiff Balji Alias Bal Singh preferred first appeal before the learned Revenue Appellate Authority. The appellant expired during the pendency of the appeal; therefore, legal representatives of the appellant were brought on record. After hearing both the parties the learned appellate court concurred with the findings of the trial Court and dismissed the appeal. Now the appellant has filed this second appeal. (4). We have heard the learned counsel for both the parties and perused the record. (5). The learned counsel for the appellant has argued that the previous suit filed by the appellants father was only under Section 188 of the Act and no relief for declaration of khatedari rights was sought by the plaintiff, whereas the subsequent suit filed by the plaintiff was for declaration of khatedari rights and permanent injunction and cause of action in both the suits was different. Therefore, both the courts below erred in holding that the decision passed in previous suit operates as res- judicata in the subsequent suit. He has placed reliance upon ``Ram Singh Bankhan vs. Board of Revenue (1) and ``Rama vs. Sangram Singh (2). (6). The learned counsel for the respondents has contended that for bringing a suit of permanent injunction under Section 188 of the Act plaintiff has to prove that he is a tenant of the land and further that he is in possession of the land. Plaintiff filed previous suit that he was tenant of the land since Smt. 2005 and that plaintiff was in possession of the dispute land. Plaintiff filed previous suit that he was tenant of the land since Smt. 2005 and that plaintiff was in possession of the dispute land. In the present suit plaintiff has pleaded that he is possession and cultivation of the land since Smt.. 2005 and he has become khatedar tenant of the land on the ground that he was in cultivatory possession of the land in Smt. 2012. Therefore, the matter directly and substantially in issue in the present suit is the same which was in issue in the former suit between the same parties. The plaintiff might or ought to have taken the ground of attack in the former suit for declaration of khatedari rights. Therefore, it shall be deemed to have been a matter directly and substantially in issue in such former suit as provided in Explanation-IV to Section 11 of CPC. Moreover, claim for declaration of khatedari rights in the subsequent suit is also barred by Order 2 Rule 2 CPC, because the plaintiff omitted to sue in respect of declaration of khatedari rights for the land in dispute. Both the courts below have held that the subsequent suit filed by the plaintiff was barred by constructive res-judicata and the courts below have committed no error of law, which may require interference in the second appeal. In support of the arguments reliance has been placed upon ``Sulochana Amma vs. Narainan Nair" (3), Onkar Lal vs. Rewa Puri (4) and ``Commissioner of Income-tax vs. T.P. Kumaran" (5). (7). We have given our anxious consideration to the rival submissions of the parties. (8). A substantial question of law is involved in the present case as to whether the suit filed by the appellants father was barred by principle of res-judicata in view of provisions contained in Explanation-IV to Section 11 and Order 2 Rule 2 CPC on the ground that the appellants father filed a former suit No. 36/65 which was dismissed on 30.9.67. Certified copy of judgment- dated 30.9.67 passed in former suit No 36/65 has been placed on record of the learned trial Court. Certified copy of judgment- dated 30.9.67 passed in former suit No 36/65 has been placed on record of the learned trial Court. Besides this certified copy of judgment-dated 20.11.69 passed by the Tehsildar, Bikaner in Case No. 11/69 is also on record by which an application filed by the plaintiff Bal Singh for conferment of khatedari rights under Section 19 of the Act was also dismissed on the ground that the application was barred by the principle of res-judicata. Both the courts below have considered the judgments passed in former suit No. 36/65 and judgment passed by Tehsildar in case No. 11/69. (9). The main thrust of the arguments of the learned counsel for the appellant is that the former suit filed by the plaintiff was only for permanent injunction under Section 188 of the Act and the subsequent suit between the parties is for relief under Section 88 and 92A of the Act and cause of action in both the suits are different. The learned trial Court held that the subsequent suit filed by the plaintiff was barred by the principle of res-judicata on the ground that the previous suit filed by the plaintiff under Section 188 of the Act could have been maintained only when the plaintiff was tenant of the land even then the plaintiff did not seek relief for declaration of khatedari rights. Therefore, he cannot bring the subsequent suit for declaration of khatedari rights in view of provisions contained in Explanation-VI to Section 11 of CPC. It was also observed that the plaintiff also filed an application for conferment of khatedari rights before Tehsildar, Bikaner and case No. 11/69 was decided against the plaintiff vide judgment dated 20.11.69. The contention of the plaintiff was not accepted that principle of res-judicata could not be attracted on the ground that former suit was only for the relief of permanent injunction. (10). The lower appellate court has also head that the plaintiff could not bring the subsequent suit for declaration of khatedari rights in view of Section 11, Explanation-IV of CPC and claim of the plaintiff was also held to be barred by provisions of Order 2 Rule 2 CPC. (11). We have also gone through the case law submitted by both the parties. (12). In Ram Singh Bankhans case full facts of the case have not been given in the judgment. (11). We have also gone through the case law submitted by both the parties. (12). In Ram Singh Bankhans case full facts of the case have not been given in the judgment. In that case previous suit was only under Section 188 of the Act and subsequent suit was filed under Section 88, 89 and 188 of the Act. it was held that-decision in the previous suit cannot act as a res-judicata against the respondents because they are free even after that to file suit for declaration at any time. Therefore, issue in both the suits was not substantially the same. (13). In the case of Rama vs. Sangram Singh only certified copy of the judgment passed in former suit was placed on record and the appellants did not file the pleadings taken in the previous suit and the judgment did not render substantial assistance to resolve the controversy regarding applicability of res-judicata. In the previous suit Sub Divisional Officer had not held that the defendants were in adverse possession of the suit land or had acquired any title on the basis of their alleged adverse possession. Issue No. 3 was specifically framed in the previous suit whether the defendants were in continuous possession of the suit land for the last fourty years but that issue was not decided vide judgment passed in former suit. Therefore, the subsequent suit was held to be not barred by the provisions of Order 2 Rule 2 of CPC or Section 11 CPC. In this following observations are made: "For finding out as to whether a particular matter was raised between The parties heard and finally decided in the previous suit the court should look into the judgment and the pleading in the previous suit. As the plea of the res-judicata is one in bar of legal right it should be given effect to only on a strict consideration of the pleadings and of the decision in the previous suit. In order to render prior decision conclusive in a subsequent suit it must appear from the record of the former suit that the particular matter sought to be concluded was necessarily determined. (14). In the case of ``Commissioner of Income-tax vs. T.P. Kumaran", respondent was working as Income-tax Officer and he was dismissed from the service. He led a suit against the order-of dismissal which came to be decreed and he was subsequently reinstated. (14). In the case of ``Commissioner of Income-tax vs. T.P. Kumaran", respondent was working as Income-tax Officer and he was dismissed from the service. He led a suit against the order-of dismissal which came to be decreed and he was subsequently reinstated. Since the arrears were not paid he filed a writ petition in the High Court which was allowed and the High Court directed the Commissioner of Income-tax to pay all the arrears. That order became final and arrears were paid. Then respondent filed claim for interest at the rate of 18% per annum before the Administrative Tribunal which was alloWed. When this matter came before the Apex Court, it was held that the claim is barred by constructive res-judicata, under Section 11, Explanation-IV CPC, Which envisages that any matter which might and ought to have been made ground of defence or attack in a former suit, shall be deemed to have been a matter directly and substantially in issue in a subsequent suit. Hence when the claim is as made at earlier occasion he should have or might have sought and secured decree for interest. He did not set and therefore, it operates as re- judicata. Even otherwise when he filed a suit and. specifically did not claim the Interest, Order 2 Rule 2 CPC prohibits the petitioner to seek remedy separately. (15). In Sulochana Ammas case the Apex Court has held that in a suit for injunction when title is in issue for the purpose of granting injunction; the issue directly and substantially arises in that suit between the parties. When the same is put in issue in later suit based on title between the name parties or their privies in a subsequent suit the decree in injunction suit equally operates as res-judicata. (16). In the case of ``Onkar Lal vs. Rewa Puri", it has been held that decision in the former suit by the Munsif on the issue between the same parties which was before it directly and substantially will bind the court trying subsequent suit in which same issue has been raised directly and substantially between the same parties and in that case a question of possession of the disputed land was found to be directly and substantially in issue in the former suit. in the former suit between the parties issue substantially and directly in issue was whether Onkar 19 was in possession of the suit plot which he could protect by way of injunction. He claimed it to be as owner. The court found Rewa Puri in possession of the plot and further found that though he was not owner but was in possession in his own right and was entitled to protect it until evicted in accordance with the law. It was therefore, held that finding as to the possession and nature of possession given in the earlier suit between Rewa Puri and Onkar Lal the present plaintiff and defendant who were in opposite possession in previous suit bind them and cannot be reopened between them. It was therefore, held that the findings given in earlier decision operates as res-judicata. (17). In view of the aforestated legal position now it is to be seen whether the issue which has arisen directly and substantially between the parties in subsequent sift was also directly and substantially in issue in the former suit. A perusal of the judgment-dated 30.9.67 rendered in former suit No. 36/65 reveals that the plaintiff took a specific plea that land bearing khasra No. 14 area 69.19 bighas was in cultivatory possession of the plaintiff since Smt. 2005 and he was also paying rent of the same. Defendant threatened to disposses the plaintiff. The issue No. 1 framed in the former suit was to the effect that whether the plaintiff is in cultivatory possession of the land in dispute bearing khasra No. 14 and he is paying rent of the same. Issue No. 2 framed in the suit was-whether the defendant has threatened to dispossess the plaintiff from his lawful possession and therefore, plaintiff was entitled for permanent injunction. Both these issues were decided against the plaintiff and it was held that the plaintiff failed to prove his possession on the disputed land and that he paid the rent of the land in dispute. While deciding issue No. 2, it was held that the plaintiff took the disputed land for cultivation in the year Smt 2014 and abandoned the land in the year Smt. 2018 and entries to this effect have been made in khasra girdawari and in daily diary of area patwari. While deciding issue No. 2, it was held that the plaintiff took the disputed land for cultivation in the year Smt 2014 and abandoned the land in the year Smt. 2018 and entries to this effect have been made in khasra girdawari and in daily diary of area patwari. Therefore, the land became government land and it was allotted to the defendants in the year Smt. 2022 and possession was also handed over to the defendants. Findings recorded in the judgment of the former suit are binding on the parties, although these findings were recorded in a suit filed by the plaintiff seeking relief for perpetual injunction. (18). In the case of Sulochana Amma the Apex Court has held that it is settled law that in a suit for injunction when title is in issue for the purpose of granting injunction the issue directly and substantially arose in that suit between the parties. When the same issue is put in issue in a latter suit based on title between the same parties in a subsequent suit decree in the injunction suit equally operates as res-judicata. In the present suit the plaintiff also averred that the plaintiff is in cultivatory possession of the disputed land since. the settlement of Smt. 2005 and claimed khatedari rights on the basis of this averment and further that the plaintiff was in cultivatory possession of the land in the year Smt. 2012. Therefore, the issue of cultivatory possession of the disputed land was directly and substantially arose in the former suit between the same parties and the finding recorded in the former suit is binding on the plaintiff. Therefore, the judgment passed in a suit for perpetual injunction, i.e., Suit No. 36/65 operates as resjudicata and both the courts below committed no error in applying principle of res- judicata. Cooling to the facts and circumstances of the case the observations made in Ram Singh Bankhans are not helpful to the appellant in view of the proposition of law propounded by the Apex Court in Sulochana Ammas case. (19). In view of above discussions the contentions of the learned counsel for the appellant are not sustainable and we hold that findings given in earlier decision between the same parties operate as res-judicata and the courts below have committed no error in dismissing the suit filed by the plaintiff and appeal preferred by the appellant respectively. (20). (19). In view of above discussions the contentions of the learned counsel for the appellant are not sustainable and we hold that findings given in earlier decision between the same parties operate as res-judicata and the courts below have committed no error in dismissing the suit filed by the plaintiff and appeal preferred by the appellant respectively. (20). In the result this appeal is dismissed with costs. Pronounced in the open court.