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2017 DIGILAW 502 (HP)

Parso v. Dumnu Ram

2017-05-11

AJAY MOHAN GOEL

body2017
JUDGMENT : Ajay Mohan Goel, J. 1. By way of this appeal, the appellant has challenged the judgment and decree passed by the Court of learned District Judge, Chamba, in Civil Appeal No. 1 of 2006, dated 18.04.2007, vide which, learned Appellate Court allowed the appeal so filed before it by the present respondents and set aside the judgment and decree passed by the Court of learned Civil Judge (Sr. Divn.) Chamba, in Civil Suit No. 38 of 2001, dated 30.09.2005, whereby learned trial Court had dismissed the suit of the plaintiff and had allowed the Counter Claim of the defendant therein i.e. present appellant. 2. Brief facts necessary for the adjudication of this appeal are that respondent/plaintiff (hereinafter referred to as ‘plaintiff’) filed a suit for declaration and permanent prohibitory injunction against the appellant/defendant on the ground that defendant No. 1 was not son of Moti but he in fact was son of Nirmal and suit land which was entered in the name of Kali, widow of Thelu was actually in possession of defendant No. 2, who had delivered the possession of same to the plaintiff. As per the plaintiff, Kali succeeded her husband Thelu after his death as a ‘Gaddi’ widow having limited rights in the suit property. Thereafter she created tenancy in favour of defendant No. 2 which was contrary to undertaking given by her in Civil Suit No. 99 of 1984 which was filed by father of the plaintiff against defendant No. 2 Paras Ram and Kali. According to the plaintiff, though the said suit filed by his father was dismissed but in appeal the same was allowed wherein it was declared that plaintiff and proforma defendant Jobnu were owners and entitled for possession of the suit property therein. Regular second appeal filed against the judgment so passed by the learned District Judge was also dismissed. It was further the case of the plaintiff that after the death of Jobnu, who died on 02.05.1992, defendant No. 1 with a view to create mischief moved an application requesting for substitution of his name in place of Jobnu and the said application of his was allowed. It was further the case of the plaintiff that defendant No. 2 knew that defendant No. 1 was the son of Nirmal. It was further the case of the plaintiff that defendant No. 2 knew that defendant No. 1 was the son of Nirmal. After the dismissal of the Regular Second Appeal, plaintiff moved an application for execution of decree in which objections were filed by defendant No. 2 and it was held that decree had become un-executable on account of non-impleadment of defendant No. 1. It was further the case of the plaintiff that against the adjudication on the said execution petition, a Civil Revision was filed by the aggrieved party i.e. present plaintiff in the High Court which was disposed of by this Court vide order dated 17.11.2000, in which, it was mentioned that the petitioner there may get his title established qua land in dispute consequent upon death of Jobnu by way of a Civil Suit. As per the plaintiff, he was in possession of the entire suit land and his prayer was that defendants be restrained from interfering in the suit land by way of issuance of a decree of permanent prohibitory injunction. 3. The suit so filed by the plaintiff was resisted by the defendants interalia on the ground that possession of the suit property was actually never delivered by defendant No. 2 to plaintiff as alleged and the suit property was in possession of the defendant. It was further the case of the defendants that Kali after succeeding the property from her late husband had become its absolute owner and she was competent to create tenancy or transfer the same in any manner she liked. On these bases, the title of the plaintiff over the suit land was denied and a counter claim was also filed by defendant No. 1 praying therein for a decree of permanent prohibitory injunction against the plaintiff by restraining him from interfering in the peaceful possession of the suit land. 4. On the basis of pleadings of the parties, learned trial Court framed the following issues. “1.Whether Shri Parso is not son of Shri Moti s/o Prithu and is son of Nirmal s/o Jwahru? OPP. 2. Whether the Whether the Parso has been impleaded by the defendant No. 2 Sh. Parso Ram with a view to mislead and therein time in the Hon’ble High Court? OPP 3. Whether the plaintiff is entitled to permanent prohibitory injunction against Parso qua joint property as alleged?OPP. 4. OPP. 2. Whether the Whether the Parso has been impleaded by the defendant No. 2 Sh. Parso Ram with a view to mislead and therein time in the Hon’ble High Court? OPP 3. Whether the plaintiff is entitled to permanent prohibitory injunction against Parso qua joint property as alleged?OPP. 4. Whether plaintiff alone succeeds to the estate left by Smt. Kali after succeeding thereby as limited only?OPP 5. Whether the present suit is not maintainable? OPD 6. Whether plaintiff is estopped by his act and conduct to file the suit? OPD. 7. Whether the plaintiff has no locus-standi to file the suit? OPD. 8. Whether the suit is barred by the principles of res-judicata? OPD 9. Whether the judgment and decree dated 3.3.21990 passed by the ld. D.J. Chamba regarding the suit land is wrong, illegal, nul and void and in-operative upon the rights of defendants, as alleged? OPD 10. Whether the defendant is in peaceful possession of suit land and the plaintiff is interfering in his possession and as such he is to be restrained permanently as alleged? OPD 11. Whether the parties follow the custom of Rajpoot and Smt. Kali succeed to be estate as full owner and not limited owner? OPD 12. Whether Smt. Kali was full owner under Hindu Succession Act being a Rajpoot lady, if so, its effect? OPD 13. Relief.” 5. On the basis of evidence led by the parties both ocular as well as documentary in support of their respective cases, the issues so framed were answered by the learned trial Court as under. “Issue No.1 : No. Issue No.2 : No. Issue No.3 : No. Issue No.4 : No. Issue No.5 : Partly yes, partly no. Issue No.6 : Yes. Issue No.7 : Yes. Issue No.8 : No. Issue No.9 : Yes. Issue No.10 : Yes. Issue No.11: Discussed. Issue No.12: Yes. Issue No. 8: (Relief) Suit of plaintiff is dismissed whereas counter claim is decreed per operative part of judgment.” 6. Learned trial Court vide its judgment and decree dated 30.09.2005 while dismissing the suit so filed by the plaintiff, decreed the Counter Claim of the defendant and passed a decree of injunction restraining the plaintiff from interfering over the suit land. Learned trial Court vide its judgment and decree dated 30.09.2005 while dismissing the suit so filed by the plaintiff, decreed the Counter Claim of the defendant and passed a decree of injunction restraining the plaintiff from interfering over the suit land. While dismissing the suit so filed by the plaintiff, it was specifically held by the learned trial Court that since plaintiff was out of possession of the suit land, he was not entitled for the relief of injunction. 7. Feeling aggrieved by the dismissal of his suit as well as decree passed in favour of defendant No. 1 in Counter Claim, the plaintiff filed an appeal i.e. Civil Appeal No. 1/2006. The appeal so filed by the plaintiff was allowed by learned District Judge and vide judgment and decree dated 18.04.2007, learned District Judge while allowing the suit filed by the plaintiff, set aside the decree in Counter Claim which was passed by the learned trial Court in favour of defendant. 8. Feeling aggrieved by the judgment and decree so passed by the learned Appellate Court, the defendant No. 1 has filed the present appeal. 9. The present appeal was admitted on 15.12.2008 on the following substantial questions of law. “1. Whether a custom with regard to alienation of property can be presumed without there being any pleadings and proof qua the same? 2. Whether a wrong entry in mutation proceedings qua the parentage can be relief upon to determine the parentage without their being any evidence? 3. Whether the first appeal Court being the last court of facts can rendered its judgment without referring to the entire pleadings and evidence led by the parties?” 10. When this case was taken up for arguments on 08.12.2016, the following substantial question of law was also framed. “Whether one single appeal filed by plaintiff against the judgment and decree dated 30.09.2005 passed by the Court of learned Civil Judge (Sr. Divn.) Chamba, in Civil Suit No. 38 of 2001 was maintainable in view of the fact that vide its judgment and decree dated 30.09.2005, learned trial Court while dismissing the suit filed by the plaintiff had decree the counter claim filed by the defendant.” 11. I have heard learned Counsel for the parties and also gone through the records of the case as well as judgments passed by both the learned Courts below. 12. I have heard learned Counsel for the parties and also gone through the records of the case as well as judgments passed by both the learned Courts below. 12. I will first decide the substantial question of law framed on 08.12.2016 and thereafter will decide other substantial questions of law, in case need so arises. 13. In the present case, admittedly, while learned trial Court dismissed the suit for declaration and permanent prohibitory injunction filed by the plaintiff/present respondent, it decreed the Counter Claim of the defendant and granted a decree of permanent prohibitory injunction in favour of defendant and against the plaintiff. 14. In other words, there were two adjudications made by the learned trial Court (a) It dismissed the suit for declaration and permanent prohibitory injunction filed by the plaintiff against the defendants (b) It decreed the Counter Claim filed by the defendant No. 1 and passed a decree of permanent prohibitory injunction in favour of defendant and against the plaintiff. 15. Aggrieved party i.e. the plaintiff rather than assailing these two different and distinct judgments and decrees passed by the learned trial Court by way of two different appeals, preferred only one appeal against both these adjudications before the learned Appellate Court, which in my considered view, was not permissible. Learned Appellate Court also without appreciating that single appeal so filed before it by the appellant therein in the facts and circumstances of the case was not maintainable, went on to adjudicate the same on merit. In my considered view, as one appeal filed against the dismissal of the suit and grant of decree in Counter Claim was not maintainable before the learned Appellate Court, therefore, the judgment and decree which has been passed by the learned Appellate Court which stands assailed before this Court by way of present appeal is liable to be set aside on this ground alone. It is pertinent to mention that the suit which was filed by the plaintiff was for declaration that he was owner in possession of the suit land and defendant No. 1 was not son of Moti but was son of Nirmal and that said defendant be restrained from interfering over the suit land. It is pertinent to mention that the suit which was filed by the plaintiff was for declaration that he was owner in possession of the suit land and defendant No. 1 was not son of Moti but was son of Nirmal and that said defendant be restrained from interfering over the suit land. Learned trial Court, in its wisdom dismissed the suit filed by the plaintiff by interalia holding that plaintiff was not in possession over the suit land and thus was not entitled for the relief of permanent prohibitory injunction. Similarly while decreeing the Counter Claim filed by defendant No. 1, it was held by the learned trial Court that as plaintiff was not owner in possession of the suit land and defendant had proved his ownership and possession over the suit land, plaintiff was restrained from interfering over the suit land. By entertaining and deciding a single appeal against dismissal of the Civil suit and allowing of Counter Claim, learned Appellate Court erred in not appreciating that in the absence of two separate appeals filed against the judgment and decree passed by the learned trial Court, adjudication in one matter acted as res-judicata qua the other and in these circumstances, a single appeal was not maintainable and could not have been adjudicated upon. As I have already mentioned above, it is not as if the findings which were returned by the learned trial Court while adjudicating the suit were totally distinct and different from the findings returned by it while allowing the Counter Claim. The findings were not only common and overlapping, therefore, obviously in the event of non-assailing of either of the said findings returned by learned trial Court both in the Civil Suit as well as in the Counter Claim, one acted as res-judicata qua the other. This very important aspect of the matter has not been taken into consideration by the learned Appellate Court and the judgment and decree so passed by the learned Appellate Court thus is not sustainable in law 16. A three Judges Bench of Hon’ble Supreme Court in Ramagya Prasad Gupta and others Vs. Murli Prasad and others, AIR 1974 Supreme Court 1320 has held. “ 8. A three Judges Bench of Hon’ble Supreme Court in Ramagya Prasad Gupta and others Vs. Murli Prasad and others, AIR 1974 Supreme Court 1320 has held. “ 8. It is clear that where a suit has been tried and finally decided on the merits, if the defeated party wishes in another suit between the same parties relating to the same property to have the same questions reagitated, he cannot be allowed to do so, because his cause of action has passed into a judgment, and the matter has become res judicata. Even where two appeals have been taken from the same judgment by two different parties to which all others are parties either as appellants or respondents and one of the appeals is dismissed either on merits or for any other reasons, it has been held by some of the High Courts, but we express no opinion thereon, that the other appeal has also to be dismissed, because it is barred by the principles of res-judicata as otherwise there will be conflict in. the decrees. In the Lahore decision there were two cross suits about the same subject- matter filed simultaneously between the same parties and two decrees were prepared. An appeal being filed in respect of one decree and not in respect of the other, the question was whether the non- filing of the appeal against that decree creates an estoppel against the hearing of the other appeal. In Narhari's case (supra) what this Court held was, where there has been on.-. trial, one finding and one decision, there need not be two appeals even though two decrees may have been drawn up and consequently the fact that one of the appeals was time barred does not bar the other appeal on the ground of res judicata. In this case, these questions ne ed not be considered. Nor is it relevant to consider whether there is any conflict between the decision in this case and Sheodan Singh's case (supra). In Sheodan Singh's case two suits were field in the Court of the Civil Judge, one for a declaration of th e title to the suit property and the second for other reliefs and consequently two other suits were filed by the respondents in the Munsif's court against the appellant claiming joint ownership to the suit property and other reliefs. The four suits were tried together by the Civil Judge. The four suits were tried together by the Civil Judge. Some of the issues were common to all the suits and one of the commons issues relating to the title of the parties was found in favour of the respondent. The Civil Judge dismissed the appellant's title suit, decreed his other suit partly, and decreed the two suits of the respondent. The appellant filed appeals against the decree in each suit. The High Court dismissed the two appeals arising out of the respondent's suits, one as time barred, and the other for failure to apply for translation and printing of the record. As the title of the respondent to the suit property had become final on account of such dismissal, the respondent prayed for the dismissal of the other two appeals also, as the main question involved therein was the same. The High Court agreed that the appeals were barred by res-judicate and dismissed them. Against these order of dismissal, the appellant filed appeals to this Court and contended that -(1) title to the property was not directly and substantially it % issue in the respondent's suits (2) the Munsif's Court could not try the title suit filed by the appellant;(3) it could not be said that appeals arising out of the respondent's suits were former suits as such the bar of res judicata will be inapplicable; and (4) the two appeals which were dismissed - one on the ground of limitations and the other on the ground of not printing the records, could not be said to be heard and finally decided. This Court held that the High Court was right in dismissing the appeals as being barred by res indicate inasmuch as the issue as to the title was raised in respondent's suits and it was directly and substantially in issue in those suits also and did arise out of the pleadings of the parties, and further the High Court's decision in the two appeals arising from the respondent's appeals were undoubtedly earlier and, therefore, the condition that there should have been a decision in a former suit to give rise to res judicate in a subsequent suit was satisfied in that case. The decision in Narhari's case (supra) was distinguished by this Court in that case so that it could not be said that that decision was in any way in conflict with the decision in Narhari's case (supra). In appeals arising out of a subsequent suit and an earlier suit where there were common issues, common subject -matter and common trial and the appeals arising out of the subsequent suit were dismissed, a question would arise as to whether the appeals from the earlier suit which were pending arc barred by res judicata A question may also arise where the subject- matter is the same and the issues are common in the two suits but some of the parties are different in one suit, whether the bar of res judicata would operate against the parties who are common. All these aspects need not be considered in these appeals because, in our view, the subject- matter of Title Suit No.68 of 1954 and that of Title Suit No. 94 of 1956 are entirely direct. Even if the issues that are common in the two suits, and it has been admitted by the learned .Advocate for the appellants that some of the issues might be common to both the suits, issues Nos. 4, 9, 12, 13 and 14 at any rate survive, and consequently the bar of res judicata would not apply.” 17. A three Judges Bench of Hon’ble Supr eme Court in Premier Tyres Limited Vs. Kerala State Road Transport Corporation, AIR 1993 Supreme Court 1202 while dealing with situation where suits are decreed by common judgment and appeal is filed against one judgment and decree whereas appeal is not filed in the connected case held that finality of finding recorded in the connected suit due to non filing of appeal precludes the Court from proceeding with appeal in other suit. It was held by Hon’ble Supreme Court that effect of non filing of appeal agai nst a judgment or decree is that it becomes final and as this finality can be taken away only in accordance with law, therefore, same consequences follows when a judgment or decree in a connected suit is not appealed from. 18. In Ram Prakash Vs. Smt. Char an Kaur and another, AIR 1997 Supreme Court 3760, Hon’ble Supreme Court has held: - “2. 18. In Ram Prakash Vs. Smt. Char an Kaur and another, AIR 1997 Supreme Court 3760, Hon’ble Supreme Court has held: - “2. It would be obvious that since the claims of the petitioner and the respondents have arisen from the same cause of action and the finding of the appellate Court that dam ages had occurred to the respondents due to misfeasance or malfeasance having been allowed to become final, the decree which is subject matter of the special leave petition cannot be assailed. The self same question was directly in issue and was the subject matter of both the suits. The same having been allowed to become final, it cannot be gone into since the same had attained finality, the petitioner having not filed any appeal against the appeal dismissing the suit. In view of this situation, the High Co urt was right in concluding that the decree of dismissal of the suit against the petitioner would operate as res judicata under Section 11 CPC in the appeal against which the petitioner has filed the second appeal.” 19. In Sri Gangai Vinayagar Temple and another Vs. Meenakshi Ammal and others (2015) 3 Supreme Court Cases 624, three Judges Bench of Hon’ble Supreme Court has held: - “ 27. Procedural norms, technicalities and processal law evolve after years of empirical experience, and to ignore them or give them short shrift inevitably defeats justice. Where a common judgment has been delivered in cases in which consolidation orders have specifically been passed, we think it irresistible that the filing of a single appeal leads to the entire dispute 30 Page 31 becoming sub judice once again. Consolidation orders are passed by virtue of the bestowal of inherent powers on the Courts by Section 151 of the CPC, as clarified by this Court in Chitivalasa Jute Mills vs. Jaypee Rewa Cement (2004) 3 SCC 85 . In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. In the instance of suits in which common Issues have been framed and a common Trial has been conducted, the losing party must file appeals in respect of all adverse decrees founded even on partially adverse or contrary speaking judgments. While so opining we do not in tend to whittle down the principle that appeals are not expected to be filed against every inconvenient or disagreeable or unpropitious or unfavourable finding or observation contained in a judgment, but that this can be done by way of cross- objections if the occasion arises. The decree not assailed thereupon metamorphoses into the character of a “former suit”. If this is not to be so viewed, it would be possible to set at naught a decree passed in Suit A by only challenging the decree in Suit B. Law considers it an anathema to allow a party to achieve a result indirectly when it has deliberately or negligently failed to directly initiate proceedings towards this purpose. Laws of procedure have picturesquely been referred to as handmaidens to justice, but this does not mean that they can be wantonly ignored because, if so done, a miscarriage of justice inevitably and inexorably ensues. The statutory law and the processal law are two sides of the judicial drachma, each being the obverse of the other. In the ca se in hand, had the Tenant diligently filed an appeal against the decree at least in respect of O S No.5 of 1978, the legal conundrum that has manifested itself and exhausted so much judicial time, would not have arisen at all.” 20. In order to persuade this Court to the Contrary, learned counsel for the appellant has relied upon the judgment of Hon’ble Supreme Court passed in Saraswathi Ammal and another vs. Rajagopal Ammal, AIR 1953 S.C.491 (Vol. 40, C.N. 121). In my considered view, in the light of judgments of the Hon’ble Supreme Court which have been cited above, there is no merit in the contention of learned counsel for the appellant that a single appeal was maintainable before the learned Appellate Court. This substantial question is answered accordingly. 21. In view of discussion held on substantial question of law framed on 08.12.2016, there is no necessity to discuss and answer other substantial questions of law. 22. This substantial question is answered accordingly. 21. In view of discussion held on substantial question of law framed on 08.12.2016, there is no necessity to discuss and answer other substantial questions of law. 22. In view of the discussion above, this appeal succeeds and accordingly, the same is allowed and the judgment and decree passed by learned District Judge Chamba, in Civil Appeal 1 of 2006, dated 18.04.2007, are set aside, whereas the judgment and decree passed by learned Civil Judge (Sr. Divn.), Chamba, in Civil Suit No. 38 of 2001 and Counter Claim, dated 30.09.2005 are upheld. No orders as to costs. Pending miscellaneous applications, if any, also stands disposed of.