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2009 DIGILAW 186 (PNJ)

Vikram v. Gian Singh

2009-01-22

RAKESH KUMAR GARG

body2009
Judgment Rakesh Kumar Garg, J. 1. The facts leading to the filing of the present revision petition are that one Rang Lal (since deceased) and respondent No. 1 Gian Singh claiming themselves to be the co-sharers along with others filed Civil Suit No. 538 dated 13.10.1998 for permanent injunction in the Court of Civil Judge (Junior Division), Faridabad against the petitioner and the proforma respondents in respect of agricultural land comprising in Khewat No. 212/209 Khatauni No. 242, Rectangle No. 23 Killa. No. 23/2(1-1) 23/3(5-7) Rectangle No. 34, Killa No. 3(8-0) total measuring 22 Kanals 8 Marlas situated within the revenue estate of village Fatehpur Bloch, Tehsil Ballabgarh, District Faridabad vide jamabandi for the year 1991-92. It was alleged in the aforesaid suit that the petitioner is stranger qua the suit property and has no right, title or interest therein whatsoever of any kind and the defendants are threatening the plaintiffs to dispossess them from the suit property illegally, unlawfully and forcibly and are bent upon to interfere in the peaceful possession of the plaintiffs in the suit property. It was also alleged in this suit that there was an oral and mutual exchange agreement and the defendants shifted their tube well and Killa No. 3 of the suit land in one corner from their partNo. 26 Killa No.7, Khewat No. 215/21 I and Khatauni No. 245 where it was installed in an old well which is still existing. After shifting the tube well connection, the defendants turned hostile and dishonest and refused to hand over ownership and possession of their land of village Jawan and also refused to remove the tube well from Killa No. 3 of the suit land. The plaintiffs requested the defendants to remove their tube well from Killa No. 3 of the suit land or to hand over possession of the land as was agreed to in exchange to his suit land but the defendants refused. Hence, the suit for permanent injunction restraining the defendants from interfering into the peaceful possession of the plaintiffs over the suit land with a decree of mandatory injunction directing the defendants to remove their tube well from Killa No. 3 of the suit land was filed. 2. Hence, the suit for permanent injunction restraining the defendants from interfering into the peaceful possession of the plaintiffs over the suit land with a decree of mandatory injunction directing the defendants to remove their tube well from Killa No. 3 of the suit land was filed. 2. Prior to filing of the civil suit No. 538 dated 13.10.1998, Karan Singh and Shiv Singh claiming themselves to be the co-sharers along with Sdkh Pal; Rang Lal and Ranjit sons of Raghbir Singh, Gian son of Sohan Lal, Narvir Singh son and Smt. Sunita and Laxmi daughters of Smt. Rajwanti widow of Hoshiar Singh filed a civil suit No. 705A dated 05.06.1998 for permanent injunction in the Court of Civil Judge, Faridabad, against the present petitioner and the proforma respondents qua the same very suit land measuring 22 kanals 8 marlas situated within the revenue estate of village Fatehpur Baloch, District Faridabad seeking the same relief as has been claimed in Civil Suit No. 538, dated 13.10.1998. 3. Upon notice, the petitioner and proforma respondents put in appearance and filed written statement submitting that the parties in the suit along with other co-sharers are joint owners of agricultural land situated in three different villages i.e. Panhera Kalan, Jawan and Fatehpur Baloch. About 40 years back, all the co-sharers partitioned the entire land of three village and are in possession as per their respective shares since then. The plaintiffs got their share in village Jawan. In lieu of their share, the defendants got land in village Fatehgarh Baloch and defendant Dhanmat established his tube well in the suit property. Thus the plaintiff-respondents have no concern with the suit property in view ofthe partition ofagricultural land between the parties. In Civil Suit No. 705 dated 05.06.1998 a Local Commissioner was appointed who submitted his report dated 26.09.1998 in which it was reported that there is a tube well in the suit property which is owned and possessed by defendant Dhanmat. Thereafter, the plaintiffs in Civil Suit bearing No.705A dated 05.06.1998 filed an application under Section 151 CPC for police help claiming themselves to be in possession of the suit property. Vide order dated 10.10.1998, the said application was dismissed by the Civil Judge holding that plaintiffs are not in possession of their portion of the suit property. Thereafter, the plaintiffs in Civil Suit bearing No.705A dated 05.06.1998 filed an application under Section 151 CPC for police help claiming themselves to be in possession of the suit property. Vide order dated 10.10.1998, the said application was dismissed by the Civil Judge holding that plaintiffs are not in possession of their portion of the suit property. The plaintiffs Karan Singh and Shiv Singh after having failed in their attempts to get favourable orders in their Civil Suit No. 705A dated 05.06.1998 got filed the present suit bearing No. 538 dated 13.10.1998 through Rang Lal and Gian Singh their co-sharers qua the same very suit land claiming the same very relief against the petitioner and proforma respondents. The present suit was filed on 13.10.1998 claiming the same rel ief as claimed in Civil Suit No. 705 of 05.06.1998 which was also pending on the day the present civil suit was filed. 4. Upon notice the petitioner along with proforma respondents put in appearance and filed written statement in Civil Suit No. 538, dated 13.10.1998 and it was stated that the suit is not maintainable since another suit i.e, Civil Suit No. 705-A dated 05.06.1998 qua the same suit land claiming the same relief is already pending between the parties. Civil Suit No.705 A dated 05.06.1998 titled as Karan Singh and another v. Dhanmat Singh was ordered to be dismissed as withdrawn vide order dated 14.10.1998 passed by Civil Judge (Junior Division) Faridabad on the statement of plaintiff Karan Singh and his counsel. No liberty was granted to the plaintiff to file fresh suit on the same cause of action. Thus, the present suit was not maintainable. The petitioner moved an application under Order 2 Rule 2 CPC read with Section II CPC before the trial Court for dismissal of the suit as the present suit was filed by the plaintiffs by concealing the material facts and since the matter in dispute was the same and there was no liberty to file fresh suit, the present suit was liable to be dismissed. 5. The aforesaid application was contested by the plaintiff-respondent and the trial Court vide impugned order dated 11.08.2004 dismissed this application holding that the plaintiff was not a party in civil suit No. 705A dated 05.06.1998. The aforesaid suit was not contested on a merit which was for the relief of permanent injunction and not for any declaration. 6. 5. The aforesaid application was contested by the plaintiff-respondent and the trial Court vide impugned order dated 11.08.2004 dismissed this application holding that the plaintiff was not a party in civil suit No. 705A dated 05.06.1998. The aforesaid suit was not contested on a merit which was for the relief of permanent injunction and not for any declaration. 6. The present revision petition has been filed challenging the aforesaid order. 7. I have heard counsel for the parties, I find no merit in this petition. The earlier suit Civil Suit No. 705A dated 05.06.1998 was filed by Karan Singh and Shiv Singh whereas the present suit has been filed by one Rang Lal and Gian Singh. In the earlier suit, the relief claimed against the petitioner was for permanent injunction whereas in the present suit, the relief claimed is for permanent injunction and for mandatory injunction directing the respondents/petitioners to remove their tube wells from the suit land. Moreover, the earlier suit was dismissed as withdrawn on the statement of the parties and not on merits. Learned counsel for the petitioner was unable to show that under what circumstances, the provisions of Order 2 Rule 2 CPC read with Section 11 CPC applied in the present case. Thus, I find no merit in this petition and the same is dismissed. Parties are directed to appear before the trial Court on 09,02.2009.