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2005 DIGILAW 782 (PNJ)

Mahinder Pal v. Prem Kumar

2005-07-26

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff Atma Ram (represented by his legal representatives) is not entitled to the relief of declaration and permanent injunction in respect of the shop on the ground that he purchased the same from one Dhanpat Rai son of Ramji Dass who was allegedly recorded as owner in possession. When the area was purchased, it was open land and the plaintiff Atma Ram is alleged to have raised construction after purchase on 25.2.1988 and since then he is claimed to be owner in possession. In support of the findings, the Courts below have placed reliance on a copy of the judgment dated 21.12.1995 Ex.D-4 between Vishvesh Chand etc. V/s. Arjun etc. It is pertinent to mention that Vishvesh Chand etc. who were plaintiffs in the earlier suit were the vendors of the defendant-respondents, whereas Arjun, Gopal and Ved Parkash were the sons of Dhanpat Rai who are apparently vendors of the plaintiff-appellants. The sale-deed dated 25.2.1988 with regard to the same property was at the centre of controversy in the earlier litigation, where the son of the plaintiff Atma Ram was party. Both the Courts below have highlighted this fact. The findings categorically went against Dhanpat Rai who was the vendor of the plaintiff and the same read as under:- "17. Ex.D4 is the copy of judgment dated 21.12.95 between Vishvesh Chand etc. and Arjun etc. Vishvesh Chand etc. who were the plaintiffs of that suit are the vendors of the defendants, whereas Arjun, Gopal and Ved Parkash are the sons of Danpat Rai, vendor of the plaintiff. Satpal defendant No. 4 in that suit is the same person, who has purchased the suit land alongwith plaintiff Atma Ram. Defendant No. 5 Bhushan is son of plaintiff Atma Ram. Thus regarding the same sale-deed dated 25.2.1988, there was litigation between Vishvesh Chand etc. vendor of defendant on one side and Satpal, co-owner of Atma Ram plaintiff, Bhushan son of plaintiff Atma Ram and Arjun etc. sons of said Dhanpat Rai vendor of the plaintiff on the other side. Defendant No. 5 Bhushan is son of plaintiff Atma Ram. Thus regarding the same sale-deed dated 25.2.1988, there was litigation between Vishvesh Chand etc. vendor of defendant on one side and Satpal, co-owner of Atma Ram plaintiff, Bhushan son of plaintiff Atma Ram and Arjun etc. sons of said Dhanpat Rai vendor of the plaintiff on the other side. The said suit was partly decreed and it was held that Satpal and Bhushan Kumar, who were claiming themselves to be owners on the basis of sale-deed dated 25.2.1988 regarding land measuring 26 sq. yards which is also in dispute in the present suit, are the bona fide purchasers and the suit regarding remaining land of Vishvesh Chand etc. was decreed. However, Ex.D-6 copy of judgment in appeal proves that the suit filed by Vishvesh Chand etc. was decreed regarding the entire land including the suit land, as the appeal was accepted and Satpal and Bhushan were even not held to be bona fide purchaser for consideration. Thus, it is proved that in the previous litigation, regarding the entire land including the suit land, Satpal one of the co-owner and Bhushan son of the plaintiff could not succeed and the sale-deed dated 25.2.1988 was set aside and held to be not binding on the predecessor-in-interest of the defendants. In the said previous litigation, it was held that when Dhanpat Rai sold the land vide registered sale-deed dated 25.2.1988 at that time, the land had already been partitioned and Dhanpat Rai was not the owner of the suit land." 2. It is further appropriate to mention that one Sat Pal co-owner was also a party in the earlier litigation who remained unable to prove that he was a bona fide purchaser and similarly, plaintiff Atma Ram was also not held to be a bona fide purchaser. The aforementioned judgment was found to be equally binding on the plaintiff-appellants being co-owners. Both the Courts below rejected the argument advanced on behalf of plaintiff Atma Ram that earlier judgment and decree Exs. D-4 and D-6 were not binding on him as he was not party albeit his sons were. The basic reason given was that the plaintiff Atma Ram remained silent till the filing of the suit on 8.4.2000/10.4.2000 from which the instant appeal has arisen and the litigation was fought by another co-owner Sat Pal and son of the plaintiff - one Bhushan. The basic reason given was that the plaintiff Atma Ram remained silent till the filing of the suit on 8.4.2000/10.4.2000 from which the instant appeal has arisen and the litigation was fought by another co-owner Sat Pal and son of the plaintiff - one Bhushan. The doctrine of estoppel by act and conduct has also been invoked against the plaintiff-appellants by the Courts below. 3. Having heard learned counsel for the appellants, I am of the considered view that no interference of this Court be warranted because the copy of the earlier judgment and decree Ex.D-4 and Ex.D-6 clearly show that the entire land including the suit land was subject matter of the earlier judgment. One of the co-owners Sat Pal and son of the plaintiff, namely, Bhushan remained unable to prove that they purchased the property from Dhanpat Rai after purchasing the open land and then plaintiff-appellants constructed the shop on the aforementioned land. The sale-deed dated 25.2.1988 was set aside and it was held not to be binding on the predecessor-in-interest of the defendantrespondents. The reasons given are that when Dhanpat Rai vendor of the plaintiff-appellants sold the land vide registered sale-deed dated 25.2.1988, then the land had already been partitioned and Dhanpat Rai was no longer owner of the land. It is well settled that earlier judgments showing the existence or non-existence of any right would become relevant under Section 13 of the Evidence Act, 1872 (for brevity, the Evidence Act), although the earlier judgment may not be inter parties. However, in the present case, the earlier judgment which is in respect of the property that includes the suit property and is between which is in respect of the property that includes the suit property and is between the predecessor-in-interest of the parties would necessarily be binding. It is also well settled that a judgment which is not inter parties but which concerns the same property would be relevant and cannot be thrown out of consideration. In this regard reliance may be placed on the view taken by the Supreme Court in the case of Tirumala Tirupati Devasthanams V/s. K.M. Krishnaiah, . In para of the judgment, the Supreme Court has considered a number of earlier judgments and has opined as under:- "In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In para of the judgment, the Supreme Court has considered a number of earlier judgments and has opined as under:- "In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango V/s. Narayan Devji Kongo, , speaking on behalf of a Bench of three learned judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected. Again B.K. Mukherjea, J. (as he then was) speaking on behalf of the Bench of four learned judges in Sital Das V/s. Sant Ram, , held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence act as transaction in which a right to property was asserted and recognised. In fact, much earlier Lord Londley held in the Privy Council in Dinamoni V/s. Brajmohini Oruft, 1992 L.L.R. 29 Cal. 190 (198) (P.C.), that a previous judgment, not inter parties was admissible in evidence under Section 13 to show who the parties were, what the land in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni V/s. Brajmohini and Ram Ranjan Chakerbarti V/s. Ram Narain Singh, 1895 I.L.R. 22 Cal. 533 (P.C.), by Sir John Woodroffe in his commentary on the Evidence Act (1931, p.181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur V/s. Ram Sunder, A.I.R. 1934 P.C. 157:61 LA. 286." Therefore, there is no room to interfere in the view taken by both the Courts below that the judgment and decree Exs.D-4 and D-6 are relevant and would help in determining the rights of the parties. 4 The plea of adverse possession raised by the plaintiff-appellants would also not require any detailed consideration because the necessary ingredients constituting the proprietary rights by virtue of adverse possession have not been pleaded in the plaint. In this regard reliance has been rightly placed on the view taken by the Supreme Court in the case of Annasaheb Bapusaheb Patil V/s. Balwant Babusaheb Patil, . In this regard reliance has been rightly placed on the view taken by the Supreme Court in the case of Annasaheb Bapusaheb Patil V/s. Balwant Babusaheb Patil, . It has also been held that once the plea of ownership based on sale-deed has been raised, then the plea of adverse possession would be mutually destructive and inconsistent. In this regard reliance has been rightly placed on a judgment of Delhi High Court in the case of Ramakant Jain V/s. M.S. Jain, 1999 3 CCC 49 (Delhi). For the reasons stated above, this appeal fails and the same is dismissed.