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2018 DIGILAW 3100 (PNJ)

Shakuntla Devi v. Sardara

2018-07-27

AMIT RAWAL

body2018
JUDGMENT Mr. Amit Rawal J.:- The appellants, i.e., legal heirs of Mam Chand-plaintiff have assailed the judgment and decree of the Lower Appellate Court allowing the appeal in part by granting injunction but declined declaration as sought. 2. The plaintiff instituted the suit for declaration and permanent injunction as consequential relief, on the premise, that land measuring 16 kanals had come into his ownership in view of the compromise dated 29.02.1968 being part of the civil suit dated 22 of 1967. It was averred that suit for pre-emption of the suit land was filed by the plaintiff which was accepted on the basis of the compromise and as such the plaintiff became the owner of suit land and thereafter, had been in actual physical possession of the same. 3. The defendants intended to dispossess him from the suit land, thus, cause of action arose to seek declaration vis-a-vis title and injunction. The defendants contested the suit by denying the filing of suit for pre-emption. It was averred that suit land was already partitioned, vide order dated 28.5.1985, whereas, suit land came to the share of defendant no.3 and his father Sadhu alongwith some other land. 4. Since the parties were at variance, the trial Court framed the following issues:- “1. Whether the plaintiff is owner in possession of the suit property?OPP 2. Whether the defendants are threatening to dispossess the plaintiff?OPP 3. Whether the plaintiff has not come with the clean hands?OPP 4. Relief.” 5. The plaintiff in support of pleadings examined two witnesses and tendered into evidence documents Ex.P1 to Ex.P13.On the other hand, defendants examined Sardara son of Sadhu as DW1 and tendered in evidence documents Ex.DA to Ex.DC. 6. The trial Court on the basis of evidence and by noticing the submissions of counsel for the respective parties dismissed the suit . The prime reason given was that no compromise was effected between the parties and the copy of compromise Ex.P2 placed on record did not reveal that the land ever came into possession of the plaintiff. 7. In appeal before the Lower Appellate Court, the plaintiff was able to succeed in protecting the possession by way of injunction but the finding on issue no.1 with regard to declaration was upheld by the Lower Appellate Court. 8. 7. In appeal before the Lower Appellate Court, the plaintiff was able to succeed in protecting the possession by way of injunction but the finding on issue no.1 with regard to declaration was upheld by the Lower Appellate Court. 8. Mr.C.B.Goel, learned counsel appearing on behalf of the appellants in support of the memorandum of appeal submitted that judgment and decrees of the Courts below vis-a-vis non-granting of relief of declaration is an abdication and perversity, for, it was only defendant No.3, who contested the suit. The plaintiff in order to establish the pleaded case, summoned the file of civil suit and the witness Rattan Singh made a statement that owing to paucity of time, he could not bring the file and stated that after tracing the file, would bring the same on the next date of hearing but on the next date of hearing, i.e., 30.01.1993, he brought the Goshwara Register of village Kakeri where there was reflection of suit at serial no.108 but file was not traceable, thus, the finding of the Courts below holding that compromise was not proved on record, is neither here nor there as it was beyond pleadings of the plaintiff. The Lower Appellate Court mis-directed in not referring to the contents of the order and decree sheet Ex.P14 and Ex.P15. Even an application for leading secondary/additional evidence was submitted before the Lower Appellate Court but the same was dismissed owing to the fact that documents Ex.P14 and Ex.P15, i.e., order and decree sheet were neither secondary evidence nor required mode of proof was followed. The Courts below abdicated in not rendering the finding on title but fact of the matter is that existence of the record was proved through the testimony of concerned witness, who brought on record the Goshwara register. Ex.P1 fard jamabandi was for the year 1982-83; Ex.P2 compromise of earlier suit no.22 of 1967, Ex.P3; jamabandi for the year 1982-83; Ex.P4 jamabandi for the year 1977-78; Ex.P5 jamabandi for the year 1987-88; Ex.P6 jamabandi for the year 1972- 73; Ex.P7 jamabandi for the year 1967-68 and Ex.P8 to Ex.P13 khasra girdawari. All the aforementioned documents were in possession of the plaintiff which weighed in the mind of the Lower Appellate Court while granting the injunction but erroneously declined the relief of ownership and thus, urged this Court for decreeing the suit in toto. 9. All the aforementioned documents were in possession of the plaintiff which weighed in the mind of the Lower Appellate Court while granting the injunction but erroneously declined the relief of ownership and thus, urged this Court for decreeing the suit in toto. 9. As per office report, respondents No.5, 6 and 8 have been served. However, there is no representation on their behalf. Notice issued to respondent No.4 has been received back unserved with the report that “not residing at the given address”. Respondents No.1 to 3, 7, 9, 10, 11, 12 and 13 stated to have been died. Before the Lower Appellate Court, respondent No.3, i.e.,Sardara Singh contested the suit. No effort has been made to bring on record the legal representatives of defendant no.3. Accordingly, I proceed further to decide the appeal on merit. 10. I have heard the learned counsel for the appellants, appraised the judgments and decrees as well as record of the Courts below and of the view that there is no force and merit in the submissions of Mr. Goel. 11. The emphasis laid during the course of hearing was upon the photocopy of an order dated 29.02.1968 passed in civil suit no.22 of 1967, wherein Mam Chand on the basis of compromise was held to be in joint possession to the extent of 16 kanals of land comprised in khewat no.621, khatoni no.937, rect. no.37/22, 59/3 of suit land but suit with regard to remaining land was dismissed. For the sake of brevity, order reads as under:- “Name of parties: Mam Chand (minor) s/o Ruhla through his brother Kahar Singh r/o Kakehri ....plaintiff. Versus Ram Singh s/o Ruhla Smt. Chawli w/of Ruhla (vendee) Maman s/o Chatru Sadhu s/o Udey Ram, Sardara s/o Sadhu, Santu s/o Asa Phunda s/o Attru, Kartara s/o Surta, r/o Pidhal .... defendants Suit for declaration and joint possession. Copy of order Present counsel for parties as before. Heard. In view of the statements of parties and their application I hereby allow the compromise to be effected as it would be in the benefit of the plaintiff, minor. Accordingly, the suit of Mam Chand minor plaintiff is hereby for joint possession to the extent of sixteen kanals contained in rect. no.37 killa no.22 and rect. Heard. In view of the statements of parties and their application I hereby allow the compromise to be effected as it would be in the benefit of the plaintiff, minor. Accordingly, the suit of Mam Chand minor plaintiff is hereby for joint possession to the extent of sixteen kanals contained in rect. no.37 killa no.22 and rect. no.59 killa no.3 of the suit land mentioned in para 1 of the plaint as per compromise Ex.P1 which shall form part of the decree sheet. The suit of the plaintiff minor qua the remaining suit land is hereby dismissed. Parties are left to bear their own costs . Announced in open Court. 29th February, 1968 Sd/-T.P.Garg Sub-Judge 2nd Class, Kaithal” In the present case, the plaintiff claimed relief in respect of the following suit property:- “land measuring 16 kanals comprised in khewat no.621, khatoni no.937, rect. no.37, killa no.22, rect. no.59, kill no.3, situated within the revenue estate of village Kakeri Tehsil Guhla.” 12. I am of the view that once the plaintiff had already been accorded the decree of joint possession with regard to 16 kanals of land, cannot be permitted to claim the declaration again. The Lower Appellate Court by noticing the plaintiff to be in possession had granted the injunction and there is no cross appeal. The remedy for the appellants, in view of the order dated 29.02.1968, was to seek partition of the suit land, if not availed of. The jurisdiction of the Civil Court cannot be invoked time and again to seek the identical relief. This is what the import of provisions of Order 2 Rule 2 and Section 11 of Code of Civil Procedure. 13. It is borne out from the record of the Lower Appellate Court that defendant no.3 projected the case that parties had taken the possession which has been negated. The plaintiff was not party in that aforementioned and therefore, did not have binding effect upon him. 14. In my view, the plaintiff should not have claimed the relief of declaration in view of the order extracted above. 15. As an upshot of my findings, I do not find any illegality and perversity in the judgment and decree of the Lower Appellate Court partly decreeing the suit, much less no substantial question of law arises for adjudication of the present appeal. 16. No other argument has been raised. 17. 15. As an upshot of my findings, I do not find any illegality and perversity in the judgment and decree of the Lower Appellate Court partly decreeing the suit, much less no substantial question of law arises for adjudication of the present appeal. 16. No other argument has been raised. 17. Resultantly, the appeal stands dismissed.