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2006 DIGILAW 3289 (PNJ)

Kapur Chand v. Hardam Singh

2006-08-11

KIRAN ANAND LALL

body2006
Judgment , J. 1. The appellant herein, who was plaintiff before the trial court, filed a suit on 28.4.1979, seeking a permanent injunction for restraining the respondent (defendant) herein from taking forcible possession of the suit land from him. The case set up in the plaint was that land was in his cultivating possession and that of his brother Matu Ram, as a tenant, for the last many years- a fact which, according to him, was clear from the khasra girdawari for the year 197172 and jamabandis for the years 1965-66 and 1975-76. The respondent-defendant, later, purchased it from some of the cosharers vide a registered sale-deed, wherein he wrongly got it incorporated that it was in his possession. In the girdawari for the crop of kharif 1978, he got a false entry of possession made in his favour. So, fearing that the respondent- defendant may not succeed in taking forcible possession of the land, the appellant-plaintiff filed a suit for permanent injunction. The respondent-defendant, on the other hand, pleaded that he was in possession of the land much prior to its purchase by him vide registered sale-deed dated 18.4.1979. His possession over it was, earlier, as a tenant, under some of the co-sharers, but after its purchase, it became as that of an owner. The suit was alleged to be barred by res-judicata also. It was pleaded that a similar suit for permanent injunction filed by the plaintiff and his brother (Matu Ram) in respect of this land, had been dismissed by the civil court, on 20.12.1972. 2. The trial court initially framed the following issues (on 15.6.1979): 1. Whether the defendant is in possession of the property as tenant? OPP 2. Whether the suit is barred by the principle of resjudicata? OPP 3. Whether the plaintiff is entitled to the injunction prayed for? OPP 4. Relief.3. But, later, on an application moved by the plaintiff-appellant under Order 14 Rule 5 CPC, the following issues were re-cast by the trial court: 1. Whether the plaintiff is in possession of property as tenant? OPP 2. Whether the suit is barred by the principle of resjudicata? OPD 4. On conclusion of trial, both the issues were decided in favour of the plaintiff-appellant and the suit was decreed. Whether the plaintiff is in possession of property as tenant? OPP 2. Whether the suit is barred by the principle of resjudicata? OPD 4. On conclusion of trial, both the issues were decided in favour of the plaintiff-appellant and the suit was decreed. The first appellate court, however, reversed the decree and dismissed the suit on the ground of it being barred by resjudicata and also because the appellant-herein was not found in possession of the land. The latter, thereupon, came up in second appeal, to this Court. 5. Needless to say that, this Court can only, go into a substantial question (s) of law, while sitting in regular second appeal. Findings of facts recorded in the judgment under challenge cannot be gone into. According to the learned Counsel for the appellant, the following substantial questions of law (placed by him on record in writing), arise in this appeal: 1) Whether the learned Addl. Distt. Judge did not repel the reasons given the learned sub-judge? 2) Whether learned Additional District Judge acted contrary to law in relying on the solitry entry in khasra girdawari made without notice to person adversly effected and without any order of any competent authority in this respect more so when the said entry is regarding 1/4 share of the land? 3) Whether the learned additional district judge failed to raise presemption of truth to the entry in jamabandi in favour of the appellant? 4) Whether in the present suit filed in April 1979, finding in an injunction suit decided in 1972 can relied to hold contrary to the enteries regarding possession in the jamabandi Annexure P-2 for the year 1975-76 and later khasra girdawaries entries Exh. P-3, P-4 and P-5 relating to period from 1972-73 to 1978-79? 6. After hearing both sides, I do not agree with the learned Counsel for the appellant, as, in my view, the only substantial question of law which may be said to be involved in this appeal is, "as to whether the decision of the previous suit filed by Kapur Chand appellant herein and his brother Matu Ram against Hazura Singh, father of Hardam Singh, respondent herein, and others, bearing No.385 of 22.7.1971 decided on 20.12.1972 would operate as resjudicata, in the present case?" And, the finding of the first appellate court on the issue of resjudicata, viz. issue No.2, holding the suit to be barred by resjudicata, does not, in my view, suffer from any lacuna. For the sake of convenience, I am producing below the definition of resjudicata, as given in Sec.11 of the Code of Civil Procedure: 11. "res judicata.- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. 7. When, during arguments, learned Counsel for the appellant was confronted with the fact that the previous suit for permanent injunction which was filed by Kapur Chand appellant and his brother Matu Ram against Hazura Singh, father of Hardam Singh defendant-respondent, was in respect of the same land which is involved in the present litigation, he could not deny the same. Ex. D3 is the judgment of that suit and the same shows that the main issue involved in that suit, also, was as to which of the two parties was in possession of the land. The claim of Kapur Chand (appellant), plaintiff-therein, and his brother Matu Ram, was that the land was in their possession and as such Hazura Singh (father of Hardam Singh, defendant respondent herein) and others, be restrained from taking its possession from them. The relevant issue framed on this point, was, "whether the plaintiffs are in possession of the suit land, as tenants, as alleged?" and the court had decided it against the plaintiffs, holding that they were not in possession of the land, and had dismissed the suit. Since that verdict was, admittedly, not challenged in appeal, it had attained finality. The net result, therefore, is that the question of possession over the disputed land, having been already decided by a court of competent jurisdiction in the earlier suit, the same could not be tried again in the present suit which was filed by the same plaintiff against Hardam Singh defendant (respondent) who is none else but the son and the successor-in-interest of Hazura Singh who was defendant in the earlier suit. The present (subsequent) suit was, thus, clearly barred by resjudicata.7. Faced with the above situation, learned Counsel for the appellant came out with the claim that, after dismissal of the earlier suit (in the year 1972), the appellant had, infact, again entered into possession of the land, and this, according to him, gave a fresh cause of action to the appellant, to seek restraint of the defendant-respondent from taking its forcible possession from him. I am afraid, the learned Counsel cannot be permitted to set up a new claim, at this stage. No such claim (plea) forms a part of the pleadings of the plaintiff-appellant. The latter had nowhere pleaded in the plaint of the suit that after dismissal of the previous suit, he had again entered into possession of the land and, therefore, a fresh cause of action had accrued to him. A perusal of the plaint, infact, clearly reveals that he had filed this suit on the same cause of action which was the basis of the previous suit, viz. that he (plaintiff-appellant) has been in continuous possession of the suit land for the last many years, as a tenant. There is not a word in the plaint (or in replication) that after the dismissal of the earlier suit, in the year 1972, he had again entered into possession of the land. Otherwise too, the appellant (plaintiff) had not approached the court with clean hands, as he did not make any reference to the previous suit or its decision, in the plaint of the present suit. Such a litigant is, therefore, not entitled to the discretionary relief of permanent injunction. In view of the above, I do not find any merit in the appeal which shall, therefore, stand dismissed. .