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2010 DIGILAW 571 (PNJ)

Daya Nand v. Risal Singh

2010-01-22

VINOD K.SHARMA

body2010
Judgment VINOD K.SHARMA, J. 1. For the reasons stated in the application, CM is allowed, delay of 41 days in filing the appeal is condoned. RSA No.187 of 2010. 2. This regular second appeal is directed against the judgment and decree dated 31.08.2009, passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for declaration and permanent injunction, has been decreed, by recording a concurrent finding of fact, that the plaintiffs were the owner in possession of the suit property. 3. The plaintiff/respondents brought a suit on the pleadings, that the plaintiffs were the owners in possession of the land in pursuance to the decree dated 3.9.1981. That the mutation of inheritance in favour of the defendants/appellant was illegal, and null and void. Consequential relief of permanent injunction was sought restraining the defendants from interfering in the possession of the plaintiffs. It is not in dispute, that Smt. Mewa Devi widow of Sri Chand was the owner of the land in dispute, which was sold to the defendants. The plaintiff/respondents filed a suit for pre-emption, which was decreed on 3.9.1981. The case of the plaintiffs was, that a sum of Rs.18,500/- (Rupees eighteen thousand and five hundred only) was deposited with the Court, which was withdrawn by mother of defendant/appellant and thereafter in pursuance to the execution of the decree, possession was taken. 4. The suit was contested, by the defendants, on the plea that no title, passed on to the plaintiff/respondents, under the decree of pre-emption, as pre-emption amount was not deposited by the plaintiff/respondents. It was also the case of the defendants, that decree had become inexecutable after the expiry of 12 years of the passing of decree. Plea of adverse possession was also raised claiming, that the defendants had become owners of the property in dispute by way of adverse possession. The defendants also filed counter-claim. On appreciation of evidence, the learned Courts below have recorded a concurrent finding of fact, that the plaintiff/respondents were the owners in possession of the suit land, in pursuance to the decree in civil suit no.402 dated 3.9.1981 and that the mutation of inheritance sanctioned in favour of the defendants dated 2.12.1992, was illegal, null and void. The suit was held to be within time. It was also held, that the defendants have failed to prove that they had perfected their title by way of adverse possession. The suit was held to be within time. It was also held, that the defendants have failed to prove that they had perfected their title by way of adverse possession. R ather the Court held, that the plaintiffs, were in possession of the suit property. The defendants were held to be bound by the decree and consequently the suit, as already referred to above, was decreed. 5. Mr. S. S. Godara, learned counsel appearing on behalf of the appellant, contends, that this appeal raises the following substantial questions of law: - "1. Whether in absence of proof of payment of pre- emption money, any title could be passed on to the plaintiffs? 2. Whether decree dated 3.9.1981 was nullity having been passed against the minors without appointment of guardian/court guardian? 3. Whether the suit filed by the plaintiffs was barred under Order 2 Rule 2 of the Code of Civil procedure?" 6. In support of the substantial questions of law, the learned counsel for the appellant vehemently contends, that the plaintiff/respondents failed to prove that the pre-emption money was deposited, and in absence thereof no title could pass on to the plaintiffs, therefore, the learned Courts below committed an error in deciding issue No.1 in favour of the plaintiff/respondents. The learned counsel for the appellant also referred to the statement of the plaintiffs where in the cross-examination they admitted that they were not in possession of the receipt of payment. On consideration, I find no force in the contention raised by the learned counsel for the appellant. Once, the decree is proved, and further it was also proved that decree was executed, and in pursuance thereto the possession of the property was handed over to the plaintiff/respondents. The learned Courts rightly came to the conclusion, that the pre-emption amount had been paid. Even otherwise, a specific stand was taken, in response to the suggestion made by the defendants, that the amount was deposited, which was received by the mother of the appellant, however, she was not produced in Court to rebut this. Thus, it cannot be said that the pre-emption money was not paid. The substantial question of law raised, therefore, does not arise for consideration, as the decree was executed and possession given thereof by the learned Executing Court to the plaintiff/respondents, which could only be done after the pre-emption money was deposited. Thus, it cannot be said that the pre-emption money was not paid. The substantial question of law raised, therefore, does not arise for consideration, as the decree was executed and possession given thereof by the learned Executing Court to the plaintiff/respondents, which could only be done after the pre-emption money was deposited. The learned counsel for the appellant also contends, that the learned Courts below have not taken into consideration the fact that the defendants were minor at the time of decree and, therefore, the decree having been passed against their interests was not sustainable in law. The contention of the learned counsel for the appellant was, that decree being void did not pass any title to the plaintiff/respondents, therefore, the findings of the learned Courts below are perverse on record. 7. This contention of the learned counsel for the appellant is again mis-conceived, as the learned Courts below rightly held, that the decree, is sought to be challenged after more than 20 years. The defendants/appellant had not chosen to challenge the decree within three years of attaining majority, therefore, now it was not open to challenge the decree, which was passed 20 years back. The second substantial question of law raised by the appellant is also answered against the appellant. 8. On the third substantial question of law, the learned counsel for the appellant contends, that the second suit on the same cause of action was barred under Order 2 Rule 2 of the Code of Civil Procedure, as the plaintiffs could have claimed the relief now sought, in the previous suit. 9. This contention again is mis-conceived. The plaintiffs/respondents have not sought the relief, which would be claimed in previous suit but filed a suit for declaration, when their title was threatened by way of mutation sanctioned in favour of the appellants subsequently to the passing of decree. The prayer made in suit was for declaration and injunction restraining the defendants from interfering in possession. This relief, by no stretch of imagination, could be said to be available to the plaintiffs when the suit for pre-emption was filed. The second suit could not be said to be barred under order 2 Rule 2 of the Code of Civil Procedure or under the principle of res judicata. Third substantial question of law is also answered against the appellant. The second suit could not be said to be barred under order 2 Rule 2 of the Code of Civil Procedure or under the principle of res judicata. Third substantial question of law is also answered against the appellant. Finding no merit in the appeal, it is ordered to be dismissed.