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2014 DIGILAW 179 (HP)

Lekh Ram v. Roop Ram

2014-03-07

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. 1. Both these appeals are being disposed of by a common judgment since the suits filed by both the parties were consolidated before the learned trial Court and were disposed of vide common judgment and decree. The appeals arising out of aforesaid judgment were also disposed of by the learned lower appellate Court by a common judgment and decree. 2. The appellants (hereinafter also referred to as the plaintiffs) filed a Civil Suit No. 57/1 of 1999/1991 for injunction on the ground that the plaintiffs were co-owners in possession of the suit land comprised in Khata/Khatauni No.12/21, Khasra Nos. 27,28 and 29, Kitas-3, measuring 10-13 bighas, situated at Mauza Gusan, Tehsil Kasauli, Pargana Basal, District Solan, H.P. It was averred that the plaintiffs had been coming into possession of the suit land since the time of their predecessor-in-interest, who had acquired proprietary rights and the plaintiffs alone had succeeded to the same after the death of original tenants Devia and Khazana Ram, respectively. It was further stated that the defendant has no right, title or interest over the suit land whatsoever. The defendant had been threatening the plaintiffs with dispossession from the house as well as the suit land in connivance with the persons and incase he was allowed to do so, the plaintiffs would suffer irreparable loss which could not be compensated in terms of money. Hence, the suit for injunction. 3. The respondent (hereinafter also referred to as the defendant) filed written statement, wherein, preliminary objections were raised that the suit land had been inherited from a common lineal ancestor of the parties and was fraudulently misappropriated by the predecessor-in-interest of the plaintiffs by depriving the defendant and another of their just and legal rights by taking undue advantage of minority of the defendant. Another objection regarding non-joinder of essential parties was raised by claiming that the legal heirs of respondent Sant Ram (son) and one of the legal heirs of late Shri Devia had not been joined as essential parties. The suit suffered from lack of better particulars. On merits, it was denied that the entire suit land was in possession of the plaintiffs. The suit suffered from lack of better particulars. On merits, it was denied that the entire suit land was in possession of the plaintiffs. It was alleged that the suit land was partly in possession of the plaintiffs and partly with the defendant ever since 1975-76 when the joint family got separated, but the ownership of the suit land belonged to the common ancestor of the parties i.e. late Shri Devia, who was none-other than the father of the defendant and predecessor-in-interest of the plaintiffs. The exclusive possession of the plaintiffs was denied and it was alleged that the defendant had constructed a house on a portion of the Khasra No.28 after separation from the joint family. The defendant claimed right to the extent of 1/4th share in the suit land and the entire house which was constructed by him in the year 1975-76. It was stated that the original tenant Devia upon his death was succeeded in equal shares by his four sons namely Jagat Ram, Khazana Ram, Sant Ram and Roop Ram. At the time of death of Shri Devia, defendants Roop Ram, Sant Ram were minors while other sons Khazana Ram and Jagat Ram, the predecessor-in-interest, of the plaintiffs were major and clever persons, who took undue advantage of the minority of the defendant. The plaintiffs got revenue entries changed in their favour by colluding with the revenue officers that too behind the back of the defendant, therefore, the revenue entries showing the plaintiffs as exclusive owners in possession of the suit land were wrong, illegal and against facts and did not in any manner create any right, title or interest in favour of the plaintiffs. The mutation sanctioned in favour of deceased Jagat Ram, Khazana Ram conferring proprietary rights over the suit land to the exclusion of the defendant and Sant Ram, the other son of Shri Devia, was alleged to be wrong, illegal and without jurisdiction and not binding upon the defendant. It was further stated that the order passed by the learned Land Reforms Officer in Case No.200/61 dated 02.11.1962, titled Jagat Ram versus Hari Krishan along with Jagat Ram and Hari Krishan, was wrong, illegal and without jurisdiction as the same was passed by the Compensation Officer behind the back of the defendant. It was further stated that the order passed by the learned Land Reforms Officer in Case No.200/61 dated 02.11.1962, titled Jagat Ram versus Hari Krishan along with Jagat Ram and Hari Krishan, was wrong, illegal and without jurisdiction as the same was passed by the Compensation Officer behind the back of the defendant. Therefore, there was no prima facie case in favour of the plaintiffs nor there was any balance of convenience and, accordingly, the defendant prayed for the dismissal of the suit. 4. The defendant also raised a counter-claim, wherein, he claimed himself to be the absolute owner in possession of the house constructed by him over a portion of the land comprise in Khasra No.28 and further claimed 1/4th share of the suit land being one of the four sons of the original tenant Shri Devia. Decree of joint possession declaring the defendant to be one of the co-shares of the suit land and, in the alternate, the defendant be declared to be the owner in possession of the suit land, as also the house standing thereupon, by way of adverse possession was also prayed for. 5. The plaintiffs filed replication, whereby, the contentions of the written statement and counter-claim had been denied by the plaintiffs. 6. Civil Suit No.64/1 of 1999/1994 was filed by the respondent herein along with one Sukh Devi widow and Dayal Chand son of Sant Ram (son of Devia), wherein, same and similar plea as set out in the counter-claim was raised by the respondent. A decree for declaration to the effect that the parties to the suit were co-owners in possession of the suit land was prayed for with a further prayer that the revenue entries showing the appellants (herein) as owners-in-possession of the entire suit land to the exclusion of the respondent be declared wrong, illegal, null and void and not binding upon the respondent and the mutation whereby the land had been mutated in favour of the appellants to the exclusion of the respondent be declared as wrong, illegal, null and void and inoperative. Further, a decree for permanent injunction restraining the appellants from interfering in the suit land, creating charge, causing damage or waste of the suit land, changing nature thereof, in any manner was prayed for. 7. The learned trial Court consolidated both the suits and on 21.04.1995 was pleased to frame the following issues:- 1. Further, a decree for permanent injunction restraining the appellants from interfering in the suit land, creating charge, causing damage or waste of the suit land, changing nature thereof, in any manner was prayed for. 7. The learned trial Court consolidated both the suits and on 21.04.1995 was pleased to frame the following issues:- 1. Whether the plaintiffs are entitled for the relief of declaration as alleged? OPP. 2. Whether the revenue entries showing the defendants as exclusive owner in possession of the suit land are wrong, illegal and thus effect the right title or interest of the plaintiffs? OPP. 3. Whether the mutation entries have been got effected by the defendant on the back of the plaintiffs which are wrong, illegal, null and void? OPP. 4. Whether the plaintiff is entitled for the relief of permanent injunction as alleged? OPP. 5. Whether the plaintiffs have succeeded to the estate of deceased Devia as alleged? OPP. 6. Whether the plaintiff is estopped from filing the suit? OPD. 7. Whether the suit is bad under Order 2 Rule 2 CPC? OPD. 8. Whether the suit is not maintainable? OPD. 9. Whether this Court has no jurisdiction to decide the present suit as alleged? OPD. 10. Relief. The following issues were also framed on 31.03.1992, 18.01.1993, 16.09.1997 and 11.12.1997, respectively:- 1. Whether the defendants are also co-owners in possession of the suit land and the revenue entries in favour of the plaintiff are wrong? OPD. 2. Whether counter claim is barred by limitation? OPP. 2A. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed for? OPP. 2B. Whether the suit is bad for non-joinder of necessary parties as alleged? OPD. 2C. Whether the defendant is entitled to the counter claim as prayed for? OPD. 2D. Whether the defendant has become owner of the suit land by way of adverse possession as alleged? OPD. 2E. Whether the order of L.R.O. dated 2.11.62 is wrong, illegal and without jurisdiction as alleged? OPD. 2F. Whether the predecessor-in-interest of the plaintiff were inducted as independent tenant qua the suit land during the life time of Sh. Devia as alleged? OPP. 3. Relief. 8. The learned trial Court after recording the evidence dismissed the suit of the plaintiffs and decreed the counter-claim of the defendant. The defendant was declared to be the co-owner along with plaintiffs on a portion of the suit land. Devia as alleged? OPP. 3. Relief. 8. The learned trial Court after recording the evidence dismissed the suit of the plaintiffs and decreed the counter-claim of the defendant. The defendant was declared to be the co-owner along with plaintiffs on a portion of the suit land. The separate suit filed by the respondent titled as Sukh Devi versus Punni Devi was decreed by declaring the parties to be co-owners in joint possession of the suit land and the revenue entries showing the appellants as owners-in-possession of the entire suit land to the exclusion of the respondent were held to be wrong, illegal, null and void and not binding upon the respondent. Accordingly, the mutation was ordered to be declared wrong, illegal, null and void and inoperative qua the right, title or interest of the respondent. The appellants were restrained from alienating the suit land, creating charge, causing damage or waste of the suit land and from changing nature thereof in any manner till the partition of the suit land amongst the co-sharers. 9. Aggrieved by the dismissal of the suit and by acceptance of the counter-claim and also aggrieved by the judgment and decree passed in favour of the respondent in Civil Suit titled Sukh Devi versus Punni Devi , the appellants herein preferred two separate appeals before the learned lower appellate Court. Both the appeals were ordered to be dismissed by the learned lower appellate Court vide its judgment dated 07.09.2001. 10. It is in this background that the present appeals have been filed before this Court. This Court on 02.11.2001 was pleased to admit the appeals on questions No.1 and 3 formulated at Page No.9 of the paper book which are as follows:- 1. Whether both the Courts below have exceeded their jurisdiction in entertaining the suit for declaration, in which the challenge was made to the question of conferment of proprietary rights by the Compensation Officer in the year 1962 upon the predecessor-in-interest of the defendant-Appellants under the provisions of H.P. Abolition of Big-Landed Estates and Land Reforms Act? 2. Whether both the Courts below have misunderstood the provisions of Order 2 Rule 2 of the Code of Civil Procedure and failed to hold that the suit of the plaintiff-respondents was barred under the said provisions? 2. Whether both the Courts below have misunderstood the provisions of Order 2 Rule 2 of the Code of Civil Procedure and failed to hold that the suit of the plaintiff-respondents was barred under the said provisions? (1) Whether both the Courts below have acted beyond their jurisdiction in declaring the order of Compensation Officer dated 2nd November, 1962 conferring the proprietary rights on the predecessor-in-interest of the plaintiff-Appellants to be illegal and without jurisdiction? Was not the jurisdiction of Civil Court barred to go into the question of conferment of proprietary rights under the provisions of H.P. Abolition of Big-Landed Estates and Land Reforms Act? (2) Whether the Lower Appellate Court has wrongly rejected the application filed by the Plaintiff-Appellants to lead additional evidence particularly when there was cogent ground entitling the plaintiff-appellants for leading such evidence and also when the Trial Court failed to afford proper opportunity to the plaintiff-Appellants to lead evidence on the additional issues framed? 11. The arguments in this case were, initially, heard on 01.03.2014 and judgment was ordered to be reserved. However, it was later noticed that the question No.3 in RSA No.510 of 2001 was absolutely different from the question No.3 raised in RSA No.509 of 2001. In this background, this Court on 04.03.2014 passed a detailed order, the relevant portion of which may reads as under:- “The arguments in both the above appeals have been heard on 1.3.2014 and judgment was reserved. While going through the record of the case, it transpired that in RSA No.510 of 2001, two applications being CMP Nos.182 and 183 of 2003 had in fact were ordered to be heard alongwith the main matter vide order dated 13.7.2004. 2. The arguments have been heard on substantial questions of law Nos.1 and 3 in RSA No.509 on which the appeal has been admitted on 2.11.2001. In RSA No.510 of 2001 the appeal had also been admitted on substantial questions of law No.1 and 3. In so far as question of law No.1 in both the appeals is concerned, the same is common while question No.3 in RSA No.510 of 2001 is absolutely different from the question No. 3 as raised in RSA No. 509 of 2001. In so far as question of law No.1 in both the appeals is concerned, the same is common while question No.3 in RSA No.510 of 2001 is absolutely different from the question No. 3 as raised in RSA No. 509 of 2001. Question No.3 in RSA No.510 of 2001 is as follows:- “Whether the Lower Appellate Court has wrongly rejected the application filed by the plaintiff-appellants to lead additional evidence particularly when there was cogent ground entitling the plaintiff-appellants for leading such evidence and also when the Trial Court failed to afford proper opportunity to the plaintiff-appellants to lead evidence on the additional issues framed?” No arguments on the above question have been addressed when the matter was argued on 1.3.2014. Therefore, in the interest of justice, both appeals are ordered to be reheard. Accordingly, both the appeals be listed for further hearing on 5.3.2014.” Accordingly, the matter came up for re-hearing on 05.03.2014. The learned counsel for the appellants fairly submitted that the question No.2 framed in RSA No.510 of 2001 which is the same question, but varying serial No.3 in RSA No.509 of 2001, was in fact the question on which the appeal has been admitted and, therefore, no arguments were required to be addressed. The relevant portion of the order dated 05.03.2014 reads as under:- “CMP Nos. 182 & 183 of 2003 It is stated by learned counsel representing both the parties that both the parties do not intend to pursue the aforesaid applications. Accordingly, the same are dismissed as having been not pressed. It is fairly submitted by learned counsel appearing for the appellants that, as a matter of fact, the appeal had been admitted on substantial questions of law No.1 and 2 and not on substantial question of law No.3 as is reflected in the order dated 02.11.2001. In this view of the matter, no further arguments are required to be addressed, and, therefore, the judgment is reserved.” 12. In this background, this Court was required to confine itself to the questions No.1 and 3 framed in RSA No.509 of 2001. 13. I have heard the learned counsel for the parties and gone through the records of the cases. Substantial Question of Law No.1 14. In this background, this Court was required to confine itself to the questions No.1 and 3 framed in RSA No.509 of 2001. 13. I have heard the learned counsel for the parties and gone through the records of the cases. Substantial Question of Law No.1 14. Shri Bhupinder Gupta, learned Senior Counsel, assisted by Shri Janesh Gupta, Advocate, for the appellants, has strenuously argued that the Courts below have exceeded their jurisdiction in entertaining the suit for declaration, in which the challenge was made to the question of conferment of proprietary rights by the Compensation Officer in the year 1962 upon the predecessor-in-interest of the defendant/appellants under the provisions of The Himachal Pradesh Abolition of Big Landed Estates and Land Reforms Act, 1953 (for short ‘Act’) and, therefore, the suit was not maintainable. He further argued that the order by the Compensation Officer was passed as far back as in the year 02.11.1962, while the present suit came to be instituted only on 20.06.1991 and, therefore, was apparently time barred. It was further contended that as per his own showing, the respondent Roop Ram while appearing as a witness had disclosed his age 40 years as on 19.01.1994 and, therefore, even going by such date, he would be deemed to have been born in the year 1954. Resultantly, at the time of passing of the order by the Compensation Officer in the year 1962, he would be deemed to have attained majority and, therefore, the suit at such a belated stage challenging the order of the Compensation Officer was definitely barred by the provisions of Section 27 of the Limitation Act. He further contended that in case the statement of the respondent Roop Ram, more particularly, the cross-examination is perused, it will clearly go to show that the respondent was well-aware of the order passed by the Compensation Officer and, therefore, also the respondent Roop Ram could not feign ignorance or challenge the order passed by the Compensation Officer beyond the prescribed period of limitation. A feeble attempt was also made by learned counsel for the appellants to contend that the Courts below had no jurisdiction to entertain the suit, especially, when the Order passed by the Compensation Officer under the Act had been challenged. 15. A feeble attempt was also made by learned counsel for the appellants to contend that the Courts below had no jurisdiction to entertain the suit, especially, when the Order passed by the Compensation Officer under the Act had been challenged. 15. On the other hand, Shri G.D. Verma, Senior Counsel, assisted by Shri B.C. Verma, Advocate, for respondents has vehemently argued that irrespective of whether the respondent had knowledge regarding the Orders having been passed by the Compensation Officer in the year 1962, there was no necessity for the respondent to challenge the said order as admittedly the same had been passed behind his back. Even otherwise, since he was not a party to those proceedings, therefore, he was not bound by the said order. It was next contended that the tenancy rights automatically devolved upon him as per Section 67 of the Act being one of the male lineal descendants of the original tenant Shri Devia. It was further contended that the order passed by the Compensation Officer was, in fact, based upon the entries appearing in the revenue record which entries were wrong and, consequently, once the revenue entries were wrong, in that event, any order based solely on such revenue entries would also be wrong. The order, if at all, has any binding effect, would only bind the parties to such order and would not be binding upon the respondent, who admittedly was not party in such proceedings. It was next contended that the revenue records were not a source of title. The respondent being one of the co-owners along with the appellants would be governed by the principles as applicable to co-owners and co-shares. 16. I have given my deep and thoughtful consideration to the rival submissions made by the parties and am in complete agreement with the arguments raised on behalf of the respondent that the inheritance to the tenancy rights under the Act is automatic. Section 67 of the Act reads as follows:- Succession 67 – When a tenant in any land dies, the right to right of shall devolve-tenancy:- (a) On his male lineal descendants, if any, in the male line of descent. (b) Failing such descendants, on his widow, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom. (b) Failing such descendants, on his widow, if any, until she dies or re-marries or abandons the land or is under the provisions of this Act ejected therefrom. (c) Failing such descendants and widow, on his widowed mother, if any, until she dies or remarries or abandons the land or is under the provisions of this Act ejected therefrom. (d) Failing such descendants and widow, or widowed mother or, if the deceased tenant left a widow or widowed mother, then when her interest terminates under clause (b) or (c) of this sub-section, on his male collateral relatives in the male line of descent from the common ancestor of the deceased tenant and those relatives.” 17. From the reading of the aforesaid provisions, it is clear that when a tenant dies, the right to succeed automatically devolves on his male lineal descendants. In the present case, it is not disputed that the tenant Devia had four sons namely Jagat Ram, Khazana Ram, Sant Ram and Rupu alias Roop Ram and on the death of Devia, it was all his four sons, who would succeed to his property and, therefore, the proprietary rights could not have been conferred upon the predecessor-in-interest of the appellants i.e. Jagat Ram and Khazana Ram, respectively to the exclusion of other two sons i.e. Sant Ram and Roop Ram. 18. It is interesting to note that in Ex.D-1 which is jamabandi for the year 1953-54, Shri Devia, s/o Goshaiya has been recorded as non-occupancy tenant over the suit land. However, strangely enough, in the next jamabandi for the year 1957-58 Ex. D-2, the name of Shri Devia has been substituted and only his two sons Jagat Ram and Khazana Ram are shown to be the non-occupancy tenants. Such entries are continued in the subsequent jamabandies. How these entries came to be recorded are anybody’s guess. 19. There is no order passed by any competent authority, save and except, the order of the Compensation Officer ordering the correction of the revenue records. In such circumstance, it was incumbent upon the appellants to have placed on record the order, if any, of the competent authority so as to prove that it was Jagat Ram and Khazana Ram alone, who were directed to be recorded the non-occupancy tenants to the exclusion of the other admitted sons of late Shri Devia. 20. In such circumstance, it was incumbent upon the appellants to have placed on record the order, if any, of the competent authority so as to prove that it was Jagat Ram and Khazana Ram alone, who were directed to be recorded the non-occupancy tenants to the exclusion of the other admitted sons of late Shri Devia. 20. In terms of Section 67 of the Act, the tenancy on the death of Devia was to devolve upon all his male lineal descendants and the tenancy could not have been conferred upon Jagat Ram and Khazana Ram alone. The devolvement of tenancy in terms of Section 67 of the Act upon all the male lineal descendants was automatic unless there was a legal and valid order of a competent Court or Authority to the contrary. The appellants have failed to adduce any positive, cogent or reliable evidence on record to prove that it was their predecessors namely Jagat Ram and Khazana Ram, who alone were entitled to succeed tenancy rights in contravention to the provisions of Section 67 of the Act. 21. It is established on record that apart from the revenue record, there was no material before the Compensation Officer on 02.11.1962 ordering the conferment of proprietary rights upon Jagat Ram and Khazana Ram to the exclusion of his other two sons i.e. Roop Ram and Sant Ram which revenue record, as already observed above, was in violation of the provisions of Section 67 of the Act. The principle is well-known to law that “where the foundation falls the super structure too must go” applies to the situation. 22. Consequently, the order passed by the Compensation Officer which is solely based upon the wrong revenue entries is illegal and bad in law. Apart from that, the same having been passed behind the back of the respondent in proceedings wherein the respondent was not a party would, otherwise, not be binding upon the respondent. 23. Insofar as the question of limitation, as urged by learned Senior Counsel, for the appellants is concerned, this order, of the Compensation Officer, in fact, was not required to be challenged by the respondent in view of Section 67 of the Act as the respondent acquired title to the property immediately on the death of his father Devia. The respondent along with other sons of Devia succeeded to the property as a co-owner. The respondent along with other sons of Devia succeeded to the property as a co-owner. What is required to be seen is as to whether it was incumbent upon the respondent to have resorted to legal remedies, only because there were revenue entries existing in favour of the appellants which were, otherwise, wrong, null and void or that there was an order passed by the Compensation Officer on 02.11.1962 which was based on no other material, save and except, the revenue entries and had been passed in proceedings where respondent was not party. Whether on account of wrong revenue entries and illegal order passed by the Compensation Officer, there was cloud cast upon the title of the respondent, I am afraid the answer is definitely in the negative. 24. Similar question arose before this Court in Khushal Chand versus Shboha Lal and another, 2014 (1) Him. L.R.133 and complete answer to these propositions has been given in the following terms:- “11 In Mt. Bolo vs. Mt. Koklan, AIR 1930 Privy Council 270, expression “right to sue” has been succinctly explained as under:-“There can be no “right to sue” until there is an accrual of the right asserted in the suit and its infringement or at least clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. No doubt Mr. Koklan’s right to the property arose on the death of Tara Chand, but in the circumstances of this case their Lordships are of opinion that there was no infringement of, or any clear and unequivocal threat to her rights till the year 1922, when the suit, as stated above, was instituted.” 12 In Shiam Lal vs. Mohamad Ali Asghar Husain, AIR 1935 Allahabad 174, learned single Judge has held that a mere entry of names does not debar the person against whom the entry is made for all time to come from suing for a declaration. Any new invasion of rights which amounts to a fresh denial of title confers on the owner in possession a fresh right to sue. The right to sue accrues when there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. The right to sue accrues when there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. 13 In Rukhmabai vs. Lala Laxminarayan, AIR 1960 SC 332 , their Lordships of Hon’ble Supreme Court have held that there can be “right to sue” until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted. Their Lordships have held as under:-“31. The argument on the question of limitation is put thus: The plaintiff, respondent herein, had knowledge of the fraudulent character of the trust deed as early as 1917 or, at any rate, during the pendency of the partition suit between Rakhmabai and Chandanlal instituted in the year 1929, and the suit filed in 1940, admittedly after six years of the said knowledge, would be barred under Art. 120 of the Limitation Act. Article 120 of the Limitation Act reads: Description of suit Period of limitation Time from which period beings to run. 120. Suit for which no period of Limitation is provided elsewhere in this Schedule. Six years When the right to sue accrues. This Article was subject to judicial scrutiny both by the Judicial Committee as well as by the High Courts of various States. The leading decision on the subject is that of the Judicial Committee in Mt. Bolo v. Mt. Koklan, 57 Ind App 325 at p. 331: (AIR 1930 PC 270 at p. 272). Therein Sir Benod Mitter observed: "There can be no 'right to sue' until there is an accrual of the right asserted in the suit and its infringement, or at least a clear and unequivocal threat to infringe that right, by the defendant against whom the suit is instituted." 32. The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. Muthukaruppan Chettiar, ILR 8 Rang 645: (AIR 1931 PC 9), and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125: (AIR 1931 PC 89). The said principle was restated and followed by the Judicial Committee in Annamalai Chettiar v. Muthukaruppan Chettiar, ILR 8 Rang 645: (AIR 1931 PC 9), and in Gobinda Narayan Singh v. Sham Lal Singh, 58 Ind App 125: (AIR 1931 PC 89). The further question is, if there are successive invasions or denials of a right, when it can be held that a person's right has been clearly and unequivocally threatened so as to compel him to institute a suit to establish that right. In Pothukutchi Appa Rao v. Secy. of State, AIR 1938 Mad 193 at p. 198, a Division Bench of the Madras High Court had to consider the said question. In that case, Venkatasubba Rao, J., after considering the relevant decisions, expressed his view thus: "There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. The Government beyond passing the order did nothing to disturb the plaintiff's possession. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an overt act, would make it incumbent on him to bring a declaratory suit." He adds at p. 199: "It is a more difficult question, what is the extent of the injury or infringement that gives rise to, what may be termed, a compulsory cause of action?" 14 In Rukshmanibehn vs. Vadilala N. Jadawala, 1994 (1) G. L. H. 237, a Division Bench of Gujarat High Court has explained the expression “right to sue” as under: ‘7. As already noted, Article 58 of the Limitation Act, 1963, which Article learned counsel for the defendant wants use to apply to the pleas of the plaintiffs, stipulates that time of three years for a suit to obtain any other declaration would begin to run “when the right to sue first accrues”. The word “first” found in Article 58 could not have a separate or an independent significance, unless the right to sue accrues. It is the element of accrual of the right to sue that is decisive and only when the right to sue has accrued, then it has got to be found out as to when it “first” accrued. The word “first” found in Article 58 could not have a separate or an independent significance, unless the right to sue accrues. It is the element of accrual of the right to sue that is decisive and only when the right to sue has accrued, then it has got to be found out as to when it “first” accrued. Hence, the pronouncement which have spoken on Article 120 of the Old Limitation Act, 1908, do form a firm guidance, to find out as to when the right to sue accrues for the purpose of Article 58 of the Limitation Act, 1963. 8. There must be accrual of the right to sue for the plaintiff, in the sense and infringement or at least a clear and unequivocal threat to infringe that right by the defendant should happen. So far the right of the plaintiff is not infringed or there is no positive and over act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue. When the plaintiff states and proves his case that on a particular date there was an infringement or at least a clear and unequivocal threat to infringe the right of the plaintiff, the defendant, if he wants to demonstrate a contrary position, must plead and prove the same. Some over act on the part of the defendant towards infringement or threat to infringe is expected to make it incumbent for the plaintiff to institute the suit. Then only it could be stated that the right to sue has accrued. A hostile attitude remaining dormant in the mind of the defendant and which never got expressed in any over act of his, by infringing or at least clearly and unequivocally threatening to infringe the right of the plaintiff will not bring the case within the purview of the set of expressions “right to sue accrues”. The above propositions gleaned from the pronouncements which we have referred to above, thought do not require reiteration, yet we have recapitulated them for the purpose of guiding ourselves to assess the facts of the case to find out as to whether the suit of the plaintiffs is barred as contended by the defendant.” 15. The above propositions gleaned from the pronouncements which we have referred to above, thought do not require reiteration, yet we have recapitulated them for the purpose of guiding ourselves to assess the facts of the case to find out as to whether the suit of the plaintiffs is barred as contended by the defendant.” 15. In Dhanno vs. Hari Ram, (1997-2) 115 P.L.R. 393, learned Single Judge of Punjab and Haryana High Court has held that the plaintiff can file suit as and when a cloud has been cast on the title of the plaintiff and the cause of action arises in such like cases when the defendant/defendants threaten the plaintiffs to take forcible possession of the land from him. Learned Single Judge has held as under: “13. Reliance upon Section 108 of the Indian Evidence Act is wholly misplaced. This section deals with burden of proving as to whether a person is alive who has not been heard of for seven years. In view of the fact that Smt. Dhanno is stated to have married Gainda sometime in the year 1943, she automatically stand divested of her right in the land on account of section 59 of the Punjab Tenancy Act. This way the plaintiffs along with Punnu became owners of the extent of l/3rd share in the joint holding. Admittedly, the land has remained in cultivating possession of the plaintiffs as well as defendants and so the mere entries in the revenue record specifying certain shares do not cast any doubt on their valuable right and the plaintiffs are well within their right to seek correction of these revenue entries in the register of mutation etc. as and when an attempt is made to dispossess them. Thus, cause of action arises in such like cases when the defendant/defendants threaten the plaintiffs to take forcible possession of the land from him. Mere entry of mutation in the name of defendant does not furnish any cause of action to the plaintiffs. This precise point came up for consideration in Ibrahim's case supra) and the Court after considering the provisions contained in Article 58 of the Limitation Act held that the use of word 'first' in Article 58 is of no significance at all and so the plaintiff can file suit as and when a cloud has been cast on the title of the plaintiff. Reliance was placed on the earlier decision of the Division Bench in the case reported as Niamat Singh v. Darbari Singh etc., (1956) 58 PLR 461 wherein it was held as under:- "If an adverse entry is made against a person who is in actual physical possession of the property and if he continues to retain possession of the said property despite this entry in the revenue papers he is under no obligation to bring a suit. If, however, his rights are actually jeopardised by the actions or assertions of the defendant, then he must take proceedings within six years from the date of such actions or assertions. In other words, the time begins to run not from the date on which an adverse entry is made but from the date on which there is a fresh denial of the plaintiff rights." 16 In Bhagwanti Devi vs. Mat Ram, (2003-3) 135 P.L.R. 585, learned Single Judge of Punjab and Haryana High Court while discussing Article 58 of the Limitation Act has held that the plaintiff continues to be in possession of the suit along with the defendant and cause of action in such case would arise when there is threat to his title. “13. It could not be disputed that the plaintiff is a partner of the firm and as partner he enjoys the benefits of the firm including the possession of the property purchased by virtue of conveyance deed dated 29.4.1968, Ext. D1. Since the plaintiff continues to be in possession of the suit land along with the defendant and, thus, his suit could not be dismissed on the ground that it is beyond the period of limitation. The cause of action in such case would arise only when there is any threat to his title. According to the plaintiff such threat arose when Improvement Trust, Hansi served a notice under Section 9 regarding acquisition of land comprising in Khasra No.1075. At this stage on inspection of record he came to know about the omission of his name in the sale deed and in the mutation.” 17 In Manti and ors. Vs. Sarwati Devi and ors., (2004-1) 136 P.L.R. 397, learned Single Judge of Punjab and Haryana High Court has held that even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Vs. Sarwati Devi and ors., (2004-1) 136 P.L.R. 397, learned Single Judge of Punjab and Haryana High Court has held that even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Learned Single Judge held as under:- 11. I have considered the rival submission and perused the record. There is no serious dispute about the substantive rights of the parties. Even learned counsel for the appellants does not dispute that Mata Chand having pre-deceased Dalip Chand, heirs of Mata Chand will not be entitled to the share of Dalip Chand in view of Entry-II of Class IInd of the Schedule to the Hindu Succession Act read with Section 8 of the said Act. Only question is of limitation. I am of the view that Article 58 of the Schedule to the Limitation Act will govern the limitation and the lower appellate court was in error in observing that Article 58 of the Act cannot apply. Even so, contention of the learned counsel for the appellants that the suit is barred by limitation, cannot be accepted. Though limitation is three years, the time from which this period beings to run is when the right to sue first accrues. It is not possible to accept that right to sue accrued in the year 1966 when mutation was sanctioned, as rightly held by the lower appellate court nor it accrued when gift of part of land was made. The parties were in joint possession and it is not shown that their shares were separated. Though learned counsel for the appellants mentioned that there was separation of joint holding, there is no material on record to indicate separation of shares and date of separation, if any. Even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Though learned counsel for the appellants mentioned that there was separation of joint holding, there is no material on record to indicate separation of shares and date of separation, if any. Even if entries in revenue record are wrong, a party can choose to ignore the same till a real threat to title is apprehended. Reference in this regard may be made to the decision of a Division Bench of this Court in Ibrahim vs. Smt. Sharifan, AIR 1980 P&H 25 , it was observed: “It may be observed at the outset that that the word ‘first’ occurring in Article 58 of the Act is of no significance at all for deciding the issue of limitation so for as the facts of the case in hand are concerned as the main point which requires determination is whether mere entry of a mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not.” It was further held that where no cloud is cast on the title of plaintiff, mere entry of mutation in the name of the defendant in absence of any other act of the defendant, cause of action does not accrue to the plaintiff for the purpose of Article 58 of the Schedule to the Limitation Act.” 18 In Ibrahim vs. Sharifan, 1979 P.L.J. 469, a Division Bench of Punjab and Haryana High Court has held that mere entry of a mutation in the name of defendant would not furnish any cause of action to plaintiff and cause of action arose to the plaintiff when defendant actually threatened to take forcible possession of land from the plaintiff. The Division Bench has held as under: “6. While controverting the aforesaid findings of the learned Single Judge, it was contended by Mr. Aggarwal, learned counsel for the appellant, that cause of action arose to the plaintiff in April, 1969, when the defendant actually threatened to take forcible possession of the land from the plaintiff and that mere sanction of the mutation with respect to half share of the land in dispute in the name of the defendant did not give any cause of action to the plaintiff, especially when he had continued to be in exclusive possession of the land without any interference of any kind by the defendant. On the other hand, it was contended by Mr. On the other hand, it was contended by Mr. Kapur, learned counsel for the respondent, that a cloud was actually cast on the right of the plaintiff in the year 1957 after the death of Akbar mutation of inheritance was sanctioned in favour of the plaintiff, the defendant and their mother in equal shares; that the right to sue first accrued to the plaintiff, on the date when the said mutation was sanctioned and the suit having been filed beyond the period of three years was clearly barred by time. 7. After giving our thoughtful consideration to the entire matter, we find that there is considerable force in the contention of the learned counsel for the appellant. 8. It may be observed at the outset that the word ‘first’ occurring in article 58 of the Act is of no significance at all for deciding the issue of limitation so far as the facts of the case in hand are concerned as the main point that requires determination is whether mere entry of mutation in the name of the defendant would furnish a cause of action to the plaintiff to file a suit for declaration or not. There is no dispute that mutation was sanctioned in favour of the defendant after the death of Akbar and in case such an entry furnished a cause of action, then certainly the suit would be barred by limitation. Even Mr. Aggarwal very fairly conceded this proposition. But what was argued by him was that mere entry of mutation did not furnish any cause of action and in support of his contention he relied on a Division Bench judgment of this Court in Niamat Singh v. Barbari Singh etc., 1956 P.L.R. 461. In our view, the contention of the learned counsel has considerable force. The plaintiff continued to be in possession of the entire property even after the sanction of the mutations in the name of the defendant after the death of Akbar or her mother Smt. Nanhi or her uncle Bhiku. The defendant was never given any share in the rent, nor was she given any produce out of the land her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. The defendant was never given any share in the rent, nor was she given any produce out of the land her share. In this situation, no cloud was cast on the title of the plaintiff by mere entry of the mutation in the name of the defendant. Further, there is no proof on the record to show that before April, 1960, by any act or assertion of the defendant the right of the plaintiff was ever actually jeopardized. The defendant is occupying a house in the village. The assertion of the plaintiff is that it was given by him to her out of compassion, while the plea of the defendant is that she occupied it as of right. Be that as it may, the fact remains that so far as the agricultural land is concerned, the defendant after the sanction of the mutations never asserted her right to her share in the land in dispute, nor did she ever get any rent or produce any that it was in the year 1969 that she tried to assert her right and interfere with the possession of the plaintiff. In this situation, mere entry of a mutation in the name of the defendant would not furnish any cause of action to the plaintiff. The view of ours finds full support from the judgment of the Division Bench in Niamat Singh’s case. Thus, we do not agree with the learned Single Judge that the cause of action arose when the mutation was entered in the name of the defendant and consequently, reverse the finding on issue No. 4 and hold that the suit filed by the plaintiff is within limitation.” 19 Their Lordships of the Hon’ble Supreme Court in Daya Singh and another versus Gurdev Singh (dead) by LRs. and others, (2010) 2 SCC 194 have held that right to sue accrues when there is a clear and unequivocal threat to infringe a right. Their Lordships have held as under: “13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the schedule which has prescribed the period of limitation relates to suits concerning declarations. Their Lordships have held as under: “13. Let us, therefore, consider whether the suit was barred by limitation in view of Article 58 of the Act in the background of the facts stated in the plaint itself. Part III of the schedule which has prescribed the period of limitation relates to suits concerning declarations. Article 58 of the Act clearly says that to obtain any other declaration, the limitation would be three years from the date when the right to sue first accrues. 14. In support of the contention that the suit was filed within the period of limitation, the learned senior counsel appearing for the plaintiffs/appellants before us submitted that there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted. In support of this contention the learned senior counsel strongly relied on a decision of the Privy Council reported in AIR 1930 PC 270 [Mt. Bolo vs. Mt. Koklan and others]. In this decision their Lordships of the Privy Council observed as follows:- "There can be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right by the defendant against whom the suit is instituted." 15. A similar view was reiterated in the case of C. Mohammad Yunus vs. Syed Unnissa and others [ AIR 1961 SC 808 ] in which this Court observed : "the period of 6 years prescribed by Article 120 has to be computed from the date when the right to sue accrued and there could be no right to sue until there is an accrual of the right asserted in the suit and its infringement or at least a clear and unequivocal threat to infringe that right." In the case of C. Mohammad Yunus (supra), this Court held that the cause of action for the purposes of Article 58 of the Act accrues only when the right asserted in the suit is infringed or there is atleast a clear and unequivocal threat to infringe that right. Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to cause of action. 16. Therefore, the mere existence of an adverse entry into the revenue record cannot give rise to cause of action. 16. Keeping these principles in mind, let us consider the admitted facts of the case. In para 16 of the plaint, it has been clearly averred that the right to sue accrued when such right was infringed by the defendants about a week back when the plaintiffs had for the first time come to know about the wrong entries in the record of rights and when the defendants had refused to admit the claim of the plaintiffs. Admittedly, the suit was filed on 21st of August, 1990. According to the averments made by the plaintiffs in their plaint, as noted hereinabove, if this statement is accepted, the question of holding that the suit was barred by limitation could not arise at all. Accordingly, we are of the view that the right to sue accrues when a clear and unequivocal threat to infringe that right by the defendants when they refused to admit the claim of the appellants, i.e. only seven days before filing of the suit. Therefore, we are of the view that within three years from the date of infringement as noted in Paragraph 16 of the plaint, the suit was filed. Therefore, the suit which was filed for declaration on 21st of August, 1990, in our view, cannot be held to be barred by limitation.” 20 This Court in Shiam Singh and others versus Chaman Lal and others, 2011 (2) Shim. L.C.-1 has held that the limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved by the entries. This Court has held as under: “14. It is well settled that for a suit for declaration, referred to in Section 46, limitation begins to run not from the date of the entry affecting the right of the person concerned, but from the date when he feels aggrieved by the entry and it is the satisfaction of such person as to when does he feel aggrieved. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made.” 25. Defendant cannot be heard to say that he (the plaintiff) felt aggrieved by the entry at some earlier point of time or when the entry was actually made.” 25. It is settled law that the possession of one co-owner is deemed to be for and on behalf of all the co-owners. Needless to say, that in the present case, it has not been established or proved that the respondent is otherwise out of possession. The fact that the order passed by the Compensation Officer was within the knowledge of the respondent is of no avail because the same was not required to be challenged by him since there was no cloud over his title. 26. Law is well settled that mutation does not create or extinguish the title nor has any presumptive value on the title. The Hon’ble Supreme Court in Sawarni versus Inder Kaur and others (1996) 6 SCC 223 has held that:- “Mutation of a property in the revenue records does not create or extinguish the title nor has any presumptive value on title. It only enables the person in whose favour the mutation is ordered to pay land revenue in question.” 27. It will be apposite here to refer to Baleshwar Tewari (Dead) by LRs. And others versus Sheojatan Tiwary and others (1997) 5 SCC 112 wherein the Hon’ble Supreme Court held: “15. Entries in Revenue records is the paradise of the patwari and the tiller of the soil is rarely concerned with the same. So long as his possession and enjoyment is not interdicted by due process and course of law, he is least concerned with entries. It is common knowledge in rural India that a raiyat always regards the land he ploughs as his dominion and generally obeys, with moral fibre the command of the intermediary so long as his possession is not disturbed. Therefore, creation of records is a camouflage to defeat just and legal right or claim and interest of the raiyat, the tiller of the soil on whom the Act confers title to the land he tills.” 28. Lastly, insofar as the question regarding the jurisdiction of the Civil Court is concerned, suffice it to say that once the question of title had been raised, then as per the settled law, it was the Civil Court alone which had the jurisdiction to entertain and decide this question. 29. Lastly, insofar as the question regarding the jurisdiction of the Civil Court is concerned, suffice it to say that once the question of title had been raised, then as per the settled law, it was the Civil Court alone which had the jurisdiction to entertain and decide this question. 29. Importantly, it would appear from the order passed by the Compensation Officer on 02.11.1962 that the same, in fact, is not a decision on merits, but is an order based on concession/compromise between the parties thereto. 30. Accordingly, this question is answered by holding that the Courts below had the jurisdiction and, in fact, rightly declared the order of the Compensation Officer dated 02.11.1962 conferring proprietary rights upon the predecessor-in-interest of the appellants to be illegal and without jurisdiction. Substantial Question of Law No. 3 31. Shri Bhupinder Gupta, learned Senior Counsel, has argued that the suit titled Sukh Devi versus Punni Devi at least at the behest of Shri Dayal Chand, plaintiff No.2 was not maintainable in view of the earlier suit Ex.PW1/A preferred by him having subsequently been withdrawn vide Ex.PW1/B. He further contended that the suit was barred under the provisions of Order 2 Rule 2 of the Code of Civil Procedure (for short ‘Code’). I am not impressed by this argument. As a matter of fact, no evidence was adduced by the appellants to prove this issue before the learned trial Court. Even while preferring an appeal before the Learned lower appellate Court there is no challenge to the findings qua this issue. Thus, the appellants cannot be permitted to rake up this issue, at this stage, rather they are estopped from raising such contention. 32. It is settled law that in order to attract and make applicable the provisions of Order 2 Rule 2 of the Code, the appellants must satisfy three conditions:- (a) The previous and second suit must arise out of the same cause of action. (b) Both the suits must be between the same parties. (c) The earlier suit must have been decided on merits. In the present case, there is no evidence to show that the cause of action in the previous and the present suit was same. That apart, the previous suit, admittedly, was not decided on merits and was got dismissed as withdrawn by Shri Dayal Chand and was not decided on merits. In the present case, there is no evidence to show that the cause of action in the previous and the present suit was same. That apart, the previous suit, admittedly, was not decided on merits and was got dismissed as withdrawn by Shri Dayal Chand and was not decided on merits. Therefore, it cannot be said that the present suit is not maintainable. 33. In Nirmala versus Hari Singh AIR 2001 H.P. 1 , this Court in somewhat similar situation made the following pertinent observations which are fully applicable to the facts of the present case:- “13. Order 23 Rule 1 may be reproduced for convenience: “Withdrawal of suit or abandonment of part of claim-(1) At any time after the institution of a suit, the plaintiff may as against all or any of the defendants abandon his suit or abandon a part of his claim: Provided that where the plaintiff is a minor or other person to whom the provisions contained in Rules 1 to 14 of order XXXII extend, neither the suit nor any part of the claim shall be abandoned without the leave of the Court. (2) An application for leave under the proviso to sub-rule (1) shall be accompanied by an affidavit of the next friend and also, if the minor or such other person is represented by a pleader, by a certificate of the pleader to the effect that the abandonment proposed is, in his opinion, for the benefit of the minor or such other person. (3) Where the Court is satisfied:- (a) That a suit must fail by reason of some formal defect. (b) That there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject matter of a suit or part of a claim, it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the claim. (4) Where the plaintiff- (a) Abandons any suit or part of claim under sub-rule (1). (4) Where the plaintiff- (a) Abandons any suit or part of claim under sub-rule (1). (b) Withdraws from a suit or part of a claim without the permission referred to in sub-rule (3), he shall be liable for such costs as the Court may award and shall be precluded from instituting any fresh suit in respect of such subject-matter or such part of the claim. (5) Nothing in this rule shall be deemed to authorize the Court to permit one of several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to withdraw, under sub-rule (3), any suit or part of a claim, without the consent of the other plaintiffs.” 14. It may be seen, under sub-rule (4), when plaintiff withdraws from the suit without permission to file fresh suit for the same subject matter as contemplated under sub-rule (3), then such plaintiff is precluded from filing any fresh suit in respect of the same subject matter. The term “subject matter” means the plaintiff’s cause of action for his suit. In other words, a suit on a different cause of action is not barred under this rule even though the suit may be in respect of the same property. It is settled law that when cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject matter. 15. Now, in this case, defendant-appellant has not placed any material before the Court to show that the cause of action and relief claimed in the earlier suit were identical. Therefore, in the absence of any material on record, the plea of the defendant that this suit is barred cannot be accepted. This apart, learned trial Judge took pains to look into the earlier plaint and found that the cause of action and relief claimed, in the earlier suit were different to the present plaint. The conclusion arrived at by the learned First Appellate Court and the trial Court cannot be said to be erroneous. 16. Similarly, next contention of the learned Senior Counsel for the appellant that the suit is not maintainable in view of the provisions of Order 2 Rule 2, Code of Civil Procedure, is fallacious. The conclusion arrived at by the learned First Appellate Court and the trial Court cannot be said to be erroneous. 16. Similarly, next contention of the learned Senior Counsel for the appellant that the suit is not maintainable in view of the provisions of Order 2 Rule 2, Code of Civil Procedure, is fallacious. Rule 2 of Order 2 of the Code reads: “2. Suit to include the whole claim:- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim-Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs-A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted. Explanation.- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.” 17. This rule is based on the principle that defendant should not be vexed twice for one and the same cause (See: AIR 1931 PC 229, Naba Kumar Hazara v. Radhashyam Mahish AIR 1984 AP 169 , Poosarla Venkata Ratnamma Power of Attorney holder Sri. V. Someswara Rao v. Smt. Sivakoti Sundara Ratnamma, AIR 1964 Raj 114 Ramjilal v. Board of Revenue. 18. The rule, it is apparent, does not preclude second suit based on distinct and separate cause of action. To make this rule applicable, the defendant must satisfy three conditions: (a) The previous and second suit must arise out of the same cause of action. (b) Both the suits must be between the same parties. (c) The earlier suit must have been decided on merits. 19. In the present case as discussed earlier, there is no evidence to show that cause of action for the previous suit was the same. (b) Both the suits must be between the same parties. (c) The earlier suit must have been decided on merits. 19. In the present case as discussed earlier, there is no evidence to show that cause of action for the previous suit was the same. This apart, the previous suit admittedly was not decided on merits as the same was withdrawn by the plaintiff-respondent. Therefore, the argument of Shri Bhupinder Gupta learned counsel for the appellant that the present suit is not maintainable has no merit. The questions are answered accordingly.” 34. The learned trial Court has correctly understood and applied the provisions of Order 2 Rule 2 of the Code by holding that there was no material placed on record by the plaintiffs whereby this plea of applicability of Order 2 Rule 2 of the Code could be upheld and consequently the suit was not barred under the said provisions. Insofar as the learned lower appellate Court is concerned, as already observed hereinabove, such plea was never raised before it and, therefore, the appellants are estopped from raising any such plea. Consequently, this question is also answered accordingly against the appellants. 35. Before parting I am constrained to observe that this is a case where, initially, the predecessor-in-interest of appellants, who were the male lineal descendants of Devia along with respondent and Sant Ram in contravention to Section 67 of the Act and in connivance with the revenue authorities have tried to usurp and appropriate the entire property of their father Shri Devia to the exclusion of the respondent and Sant Ram. Later on, even their successors i.e. the appellants have prolonged this litigation since 20.06.1991 by taking undue advantage of the entries appearing in their favour in the revenue record and by raising all sorts of frivolous pleas. 36. Resultantly, the present appeals are ordered to be dismissed with costs throughout. The judgments and decrees passed by both the learned Courts below are accordingly upheld.