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2016 DIGILAW 410 (PNJ)

Om Parkash v. Sanjeet

2016-02-01

AUGUSTINE GEORGE MASIH

body2016
JUDGMENT : Augustine George Masih, J. C.M. No. 13664-C of 2015 1. Prayer in this application is for condonation of delay of 79 days in re-filing the appeal. 2. The reason assigned for the delay in re-filing is that after the filing of the appeal, certain objections were raised by the Registry. For complying with the said objections, certain documents and other particulars were required, which were sought by the counsel from the applicant/appellants. After obtaining the same, the objections were removed, which resulted in the delay of 79 days in re-filing the appeal. The application is supported by the affidavit of Rajbir son of Sh. Om Parkash (applicant/appellant herein). 3. In view of the above, the present application is allowed. Delay of 79 days in re-filing the appeal stands condoned. C.M. No. 13665-C of 2015 1. Prayer in this application is for making good the deficiency in Court fee, which inadvertently was not affixed at the time of filing of the appeal. The same has now been made good and, therefore, a prayer has been made for taking the same on record. 2. For the reasons mentioned in the application, which is duly supported by the affidavit of Rajbir son of Sh. Om Parkash (appellant herein), the same is allowed and the Court fee, as made good, is taken on record. RSA No. 5629 of 2015 1. Challenge in this appeal is to the judgment and decree passed by the Additional Civil Judge (Senior Division), Bahadurgarh dated 24.09.2013, whereby the suit for declaration filed by the plaintiff- respondent to the effect that Mutation No. 1060 except plots No. 209 and 308 and mutation No. 1133 which are based on civil court decree on correction/amendment dated 25.08.1994 in civil suit No. 342/1 of 05.09.1994 titled as Sanjeet and others v. Zile Singh and others passed by the Sub-Judge, 1st Class, Bahadurgarh have been legally sanctioned and revenue record should be prepared according to the above-said decree after correction and with conformity of Mutation Nos. 1060 and 1133 and Mutation No. 1053 be set aside and declared illegal, null and void with a prayer for permanent injunction, has been decreed, appeal against which preferred by the appellants-defendants dismissed by the District Judge, Jhajjar on 02.02.2015. 2. It is the contention of the learned counsel for the appellants that the second suit for the same cause of action is not maintainable. 2. It is the contention of the learned counsel for the appellants that the second suit for the same cause of action is not maintainable. His further contention is that the respondents-plaintiffs are seeking execution of the decree dated 25.08.1994 as amended in civil suit No. 342/1 dated 05.09.1994, which is not permissible in law as the period of execution i.e. 12 years has expired. He, thus, contends that the judgments and decree, as passed by the Courts below, cannot sustain and deserve to be set aside. Reliance in this regard has been placed upon a judgment of the Supreme Court in Dadu Dayalu Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and another, 2008(2) R.C.R. (Civil) 936. He, on this basis, contends that the present suit is not maintainable as it is hit by the principle of res judicata. However, on a question put by this Court as to what prejudice has been caused to the appellants-defendants when the Court has only proceeded to set aside the wrong mutation and has decreed the suit by granting them the relief, as has been granted by the Court in its decree dated 25.08.1994, the counsel states that as per earlier mutation No. 1053 sanctioned in their favour by the revenue authorities in pursuance to the initial unamended decree passed by the Court, they are in possession of more land than what was their entitlement after the amendment of the decree on an application moved by the respondents-plaintiffs. Prayer has been made to allow the appeal. 3. I have considered the submissions made by the learned counsel for the appellants and with his assistance, have gone through the impugned judgments. 4. The objection with regard to the maintainability of the suit is based upon the assertion that the respondents-plaintiffs have not proceeded to file an execution application as per the amended decree and had filed a fresh suit, which would not be maintainable as being hit by the principle of res judicata. This contention of the learned counsel for the appellants cannot be accepted in the light of the fact that initially the decree was passed by the Court in civil suit No. 342/1. On the basis of the said civil suit, mutation No. 1053 was sanctioned. This contention of the learned counsel for the appellants cannot be accepted in the light of the fact that initially the decree was passed by the Court in civil suit No. 342/1. On the basis of the said civil suit, mutation No. 1053 was sanctioned. As per the said mutation when the respondents-plaintiffs came to know that their share is on the lesser side than their entitlement as per their claim in the suit, they moved an application for amendment/correction of the decree under Section 152 of the Code of Civil Procedure. The said application was allowed without contest and no appeal was preferred by any of the parties. The said amended judgment and decree attained finality, on the basis of which, mutation No. 1060 was sanctioned. As per this amended judgment and decree when Mutation No. 1060 was sanctioned, the same was sent to the revenue officials for review and correction of mutation and on the basis of the sanction received, the mutation has been corrected but now when it came to actual incorporation thereof in the revenue record, the same, till date, has not been done. 5. It is at this stage that the present suit has been filed for declaration to the effect that Mutation No. 1053 is not sustainable as it is not in consonance with the amended decree. The plea, as has been taken, is only limited to the extent of declaring Mutation No. 1053 as incorrect and declaring Mutation No. 1060 as the correct one. The finding, as recorded by the Courts below with regard to the plea of the respondents-plaintiffs, is in consonance with law as it would not be barred by the principle of res judicata as the cause of action in the earlier suit and the present one is different because the earlier suit was although termed as a declaration but was with regard to the factum that the respondents-plaintiffs were the owners of the land, to which the respondents have not disputed and accordingly, the declaration was granted whereas in the present case, the challenge is to the mutation, which has wrongly been sanctioned and being not in consonance with the amended decree passed in civil suit No. 342/1 dated 05.09.1994, the principle, therefore, would not be applicable to the case in hand. The judgment, reliance on which has been placed by the learned counsel for the appellant in Dadu Dayalu Mahasabha, Jaipur (Trust) (supra) would thus, not be applicable to the case in hand. 6. It may be added here that the appellants-defendants have only come forth with a technical objection so as to deprive the respondents- plaintiffs of the fruits of the decree in their favour as it is an admitted case that as per the impugned Mutation No. 1053, which was sanctioned on the basis of an unamended decree, the appellants-defendants were in possession of and shown as owners of more land than their entitlement as per the amended decree passed on an application moved under Section 152 CPC, which also was never contested by the appellants-defendants before the Court below and had attained finality. The stand of the appellants-defendants being unjustified, unreasonable and based upon mala-fide intention especially when, they are holding on to the land which they are not entitled to as per the judgment and decree passed by the Court, the present appeal deserves dismissal. 7. There being concurrent findings recorded by the Courts below on the facts of the case, which have been found to be based on proper appreciation of the pleadings and the evidence produced by the parties, there is no illegality in the impugned judgments passed by the Courts below. Further, there is no substantial question of law in the present appeal, which requires consideration of this Court. 8. In view of the above, finding no merit in the appeal, the same stands dismissed. C.M. No. 13666-C of 2015 1. In the light of the dismissal of the main appeal, no separate orders are required to be passed in this application for stay and, therefore, the same stands dismissed.