Braham Dutt And Others vs Khilo Devi Through Her Lrs
2024 Latest Caselaw 7693 HP

Himachal Pradesh High Court

Braham Dutt And Others vs Khilo Devi Through Her Lrs on 15 June, 2024

Neutral Citation No. ( 2024:HHC:3481 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 237 of 2005

.

                                              Reserved on: 31.5.2024





                                              Date of Decision: 15.06.2024





    Braham Dutt and others                                                       ...Appellants

                                          Versus

    Khilo Devi through her LRs


    Coram
                            r                to                             ...Respondents

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 Yes.

For the Appellants : Mr. G.D. Verma, Senior Advocate, with Mr. Sumit Sharma, Advocate.

For the Respondents : Mr. Bhupender Gupta, Senior

Advocate, with Mr. Pranjal Munjal, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

and decree dated 22.2.2005, passed by the learned District Judge,

Hamirpur, (learned First Appellate Court), vide which the

judgment and decree dated 31.12.2002, passed by learned Sub

Judge, 1st Class (I), Hamirpur, H.P., (learned Trial Court) was

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

allowed and the suit filed by the respondent (plaintiff before the

learned Trial Court) was decreed. (Parties shall hereinafter be

.

referred to in the same manner as they were arrayed before the

learned Trial Court for convenience).

2. Briefly stated, the facts giving rise to the present

appeal are that the plaintiff filed a civil suit for declaration that

she is co-owner-in-possession of the land comprised in Khata

No. 122, Khatauni No. 133, Khasra No. 1650/479, measuring 04

kanal 11 marla, situated in Tika Patta, Tappa Mehlta, Tehsil

Bhoranj, District Hamirpur, H.P. to the extent of 78/182 shares

(hereinafter referred to as the suit land) and the judgment and

decree dated 1.9.1997, passed in Civil Suit No. 303 of 1997, titled

Braham Dutt Vs. Salig Ram is null, void, collusive, and not

binding upon the plaintiff. A consequential relief of permanent

prohibitory injunction for restraining defendant no. 1 from

interfering with the suit land, changing its nature was also

sought. A relief of possession was also prayed in case the

defendants succeeded in changing the nature or dispossessing

the plaintiff from the suit land. It was pleaded that Labha Ram,

the deceased husband of the plaintiff, was the owner-in-

possession of the suit land to the extent of 78/182 shares. The

suit land was mutated in favour of the plaintiff and

Smt. Sunehru, the second wife of Labha Ram, in equal shares

.

after his death. Sunehru also died on 13.8.1993 and the plaintiff

succeeded to her estate. Defendant No.2 started claiming the

share of Sunehru based on certain fake documents. The plaintiff

filed a Civil Suit No. 118/95, titled Khilo Devi Vs. Salig Ram in the

Court of learned Sub Judge-I. Defendant No.2, in connivance

with Ramesh Kumar, filed a Civil Suit No. 415/1994 in the Court

of learned Sub Judge-I, Hamirpur, which was decided without

impleading the plaintiff. The plaintiff challenged the judgment

and decree and the suit is pending before learned Sub Judge-II,

Hamirpur. Defendant No.2 is claiming ownership based on the

judgment and decree passed in Civil Suit No. 415/94 and the

mutation No. 944 was sanctioned on the basis of judgment. The

plaintiff is a blind widow lady. Defendant No.2 is forcing her to

give away her share. He filed another Civil Suit No. 303/1997 in

connivance with defendant No.1., which was compromised to the

extent of 1 kanal. The defendants are interfering with the suit

land based on the judgments. Hence, the suit seeking the relief

mentioned above.

3. The suit was opposed by filing a written statement

taking preliminary objections regarding lack of maintainability,

.

locus standi and cause of action, and the plaintiff being estopped

to file the present suit by her act and conduct. The contents of

the plaint were admitted to the extent that deceased Labha Ram

was the owner of the suit land to the extent of 78/182 shares. It

was asserted that he had executed a Will in favour of defendant

No.2 regarding his property and defendant No.2 became the

owner on the basis of the Will. Mutation of the share of Labha

Ram was wrongly sanctioned in the name of the plaintiff and

defendant No.2 filed a civil suit challenging the mutation. It was

also admitted that defendant No.1 has been declared the owner

of 1 Kanal land by the Civil Court. This land was given to

defendant No.1 by Labha Ram in the year 1983. Defendant No.1

has constructed an Abadi consisting of three rooms, a verandah

and a cowshed. He is using the whole land as a courtyard. Hence,

it was prayed that the suit be dismissed.

4. A replication denying the contents of the written

statement and affirming those of the plaint was filed.

5. The learned Trial Court framed the following issues

on 13.12.1999: -

.

1. Whether the plaintiff is owner-in-possession over the suit land to the extent of 78/182 shares as alleged? OPP.

2. Whether the judgment and decree dated 1.9.1997 in Civil Suit No. 303/1997, titled Braham Dutt Vs. Salig Ram, is null and void as alleged? OPP.

3.

Whether the plaintiff entitled for possession by way of demolition, if found to be dispossessed during pendency of the suit as alleged? OPP.

4. Whether the suit is not maintainable as alleged? OPD.

5. Whether the plaintiff is estopped to file the present suit as alleged? OPD.

6. Relief.

6. The parties were called upon to produce the evidence

and the plaintiff examined herself (PW1) and Yog Raj (PW2).

Defendants examined defendant No.1 Braham Dutt (DW1) and

Shambhu Ram (DW2).

7. Learned Trial Court held that the plaintiff has not

established her ownership or possession to the extent of 78/182

shares. She has claimed the ownership based on the judgment

and decree passed in the previous suit. However, the judgment

and decree were stayed and no advantage could be derived from

the previous judgment. Hence, the learned Trial Court answered

Issues No.1 to 5 in negative and dismissed the suit of the

.

plaintiff.

8. Being aggrieved from the judgment and decree

passed by the learned Trial Court, the plaintiff filed an appeal,

which was decided by the learned District Judge, Hamirpur.

Learned First Appellate Court held that it was not disputed that

the plaintiff is the widow of Labha Ram and his property was

mutated in her name and in the name of Sunehru Devi, the other

widow. Defendant No.2 failed to establish any relation with

Sunehru Devi. It was asserted in the written statement that a

Will was executed in favour of defendant No.2; however, no such

Will was produced on record. Defendant No.1 claimed that Labha

Ram had executed an agreement to sell in his favour and Labha

Ram had put him in possession. However, this fact was not

proved. Defendant No. 2 had no right to acknowledge the title of

defendant No.1 and the decree passed in the previous suit is not

binding upon the rights of the plaintiff. Hence, the judgment

and decree passed by the learned Trial Court were set aside and

the suit of the plaintiff was decreed.

9. Being aggrieved from the judgment and decree

passed by the learned Appellate Court, the present appeal has

.

been filed, which was admitted on 20.10.2006 on the following

substantial questions of law: -

1. Whether the present suit for declaration was maintainable in view of the earlier suit for declaration i.e. Civil Suit No. 118 of 95 filed by the

respondent/plaintiff on same facts against the appellant/defendant no.2 which has been decreed by the learned Sub Judge-I, Hamirpur and against which the appeal is pending before the learned District

Judge, Hamirpur and the operation of the said decree

has been stayed by the learned District Judge, Hamirpur vide order dated 30.5.2002?

2. Whether the plaint was liable to be rejected under the

provisions of Order 7 Rule 11 CPC due to the relief having been claimed under valued?

3. Whether the Trial Court had no pecuniary jurisdiction to go into the dispute between the

parties. Admittedly the property involved in the suit consists of land upon which the appellant/defendant No.1 had constructed 3 rooms, a cowshed and

verandah, was not the same required to be valued for the purpose of court fee and jurisdiction at the market value of the disputed property. Has not the value affected the jurisdiction of the Trial Court as well as the Appellate Court?

4. Whether the respondent/plaintiff had properly valued the suit for the purpose of court fee and jurisdiction for the relief of possession. Have not the courts below committed material irregularity and illegality in not framing the issue on this point

especially when the appellants defendants have taken specific objection with regards to the same?

5. Whether the Appellate Court below has erred gravely

.

in relying upon the findings of learned Sub Judge,

Hamirpur in Civil Suit No. 118 of 95 between the same parties with regards to the execution of the will in

favour of appellant/defendant No.2, since the appeal is pending before the learned District Judge, Hamirpur against the said decree and the operation of which has been stayed?

6. Whether the First Appellate Court below has acted in a highly erroneous and perverse manner in decreeing the suit of the respondent/plaintiff for relief of

possession, without specifically identifying the land

more specifically in the absence of any Tatima being produced and proved on record by the respondent/plaintiff?

7. Whether the findings of fact arrived at by the learned First Appellate Court below are vitiated by non- consideration of relevant and material evidence and

by essentially erroneous approach to the matter in issue?

8. Whether the documentary evidence has been rightly considered and construed by the First Appellate

Court and the First Appellate Court had approached the matter in accordance with the law and had right occasion to dislodge the findings of the Trial Court?

10. I have heard Mr G.D. Verma, learned Senior Counsel,

assisted by Mr Sumit Sharma, learned Counsel for the

appellants/defendants and Mr Bhupinder Gupta, learned Senior

Counsel, assisted by Mr Pranjal Munjal, learned Counsel for the

respondents-plaintiffs.

.

11. Mr. G.D. Verma, learned Senior Counsel for the

appellants/defendants submitted that the suit for declaration

was not maintainable in view of the bar contained in Order 23

Rule 3A of CPC. He relied upon the judgment of this Court in

Jamna Devi Vs. Saraswati Devi, RSA No. 339 of 2005, decided on

16.11.2018. He submitted that the suit is also barred by the

provisions of Order 2 Rule 2 because the claim could have been

made in the earlier suit but was not so made. The suit was filed

for seeking possession and was not properly valued for Court

fees and jurisdiction because the house existed on the suit land

and the value of the house should have been considered.

Therefore, he prayed that the present appeal be allowed and the

judgment and decree passed by the learned First Appellate Court

be set aside.

12. Mr. Bhupinder Gupta, learned Senior Counsel for the

respondent/plaintiff supported the judgment and decree passed

by the learned First Appellate Court and submitted that no

interference is required with the same.

13. I have given considerable thought to the submissions

at the bar and have gone through the record carefully.

.

Substantial Question of Law No.1:

14. The pleadings in Civil Suit No. 118 of 1995 were not

brought on record. It was laid down by the Hon'ble Supreme

Court in Gurbux Singh v. Bhooralal, (1964) 7 SCR 831: AIR 1964 SC

1810 that bar under Order 2 Rule 2 of CPC cannot be invoked

without filing the copies of the pleadings. It was observed: -

"7. Learned Counsel for the appellant, however, urged

that in his plaint in the present suit, the respondent had specifically referred to the previous suit having been for mesne profits and that as mesne profits could not be

claimed except from a trespasser there should also have been an allegation in the previous suit that the defendant was a trespasser in wrongful possession of the property

and that alone could have been the basis for claiming mesne profits. We are unable to accept this argument. In

the first place, it is admitted that the plaint in the present suit was in Hindi and that the word 'mesne profits' is an English translation of some expression used in the

original. The original of the plaint is not before us and so it is not possible to verify whether the expression 'mesne profits' is an accurate translation of the expression in the original plaint. This apart, we consider that learned Counsel's argument must be rejected for a more basic reason. Just as in the case of a plea of res judicata which cannot be established in the absence of the record of the judgment and decree which is pleaded as estoppel, we consider that a plea under Order 2 Rule 2 of the Civil Procedure Code cannot be made out except on proof of the plaint in the previous suit the filing of which is said to

create the bar. As the plea is basically founded on the identity of the cause of action in the two suits the defence which raises the bar has necessarily to establish the cause

.

of action in the previous suit. The cause of action would be

the facts which the plaintiff had then alleged to support the right to the relief that he claimed. Without placing before the Court the plaint in which those facts were

alleged, the defendant cannot invite the Court to speculate or infer by a process of deduction what those facts might be with reference to the reliefs which were then claimed. It is not impossible that reliefs were

claimed without the necessary averments to justify their grant. From the mere use of the words 'mesne profits' therefore one need not necessarily infer that the possession of the defendant was alleged to be wrongful. It

is also possible that the expression 'mesne profits' has

been used in the present plaint without a proper appreciation of its significance in law. What matters is not the characterisation of the particular sum demanded but what in substance is the allegation on which the claim to

the sum was based and as regards the legal relationship on the basis of which that relief was sought. It is because of these reasons that we consider that a plea based on the

existence of a former pleading cannot be entertained when the pleading on which it rests has not been

produced. We therefore consider that the order of remand passed by the learned Additional District Judge which was confirmed by the learned Judge in the High Court was

right. The merits of the suit have yet to be tried and this has been directed by the order of remand which we are affirming."

15. A similar view was taken in Bengal Waterproof Ltd. v.

Bombay Waterproof Mfg. Co., (1997) 1 SCC 99, wherein it was

held:-

"7. A mere look at the said provisions shows that once the plaintiff comes to a court of law for getting any redress basing his case on an existing cause of action he must

.

include in his suit the whole claim pertaining to that cause

of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same then he cannot subsequently resurrect the said

claim based on the same cause of action. So far as sub- rule (3) of Rule 2 of Order 2 CPC is concerned, bar of which appealed to both the courts below, before the second suit of the plaintiff can be held to be barred by the same it

must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit plaintiff had not sued for any of the reliefs

available to it on the basis of that cause of action, the

reliefs which it had failed to press in service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2,

Rule 2, sub-rule (3) that the second suit of the plaintiff filed in 1982 is based on the same cause of action on which its earlier suit of 1980 was based and that because it had

not prayed for any relief on the ground of passing off action and it had not obtained leave of the court in that

connection, it cannot sue for that relief in the present second suit. So far as this plea of the defendants is concerned there is a threshold bar against them for their

failure to bring on record the pleadings of the earlier suit which unfortunately has not been properly appreciated by the courts below. A Constitution Bench of this Court in the case of Gurbux Singh v. Bhooralal [(1964) 7 SCR 831: AIR 1964 SC 1810] speaking through Ayyangar, J. in this connection has laid down as under:

"In order that a plea of a bar under Order 2, Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same

cause of action as that on which the previous suit was based, (2) that in respect of that cause of action, the plaintiff was entitled to more than one

.

relief, (3) that being thus entitled to more than one

relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis it

would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, unless there is an identity between the cause

of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar. No doubt, a relief which is sought in a plaint

could ordinarily be traceable to a particular cause

of action but this might, by no means, be the universal rule. As the plea is a technical bar it has to be established satisfactorily and cannot be presumed merely on the basis of inferential

reasoning. It is for this reason that we consider that a plea of a bar under Order 2, Rule 2, Civil Procedure Code can be established only if the

defendant files in evidence the pleadings in the previous suit and thereby proves to the Court the

identity of the cause of action in the two suits. It is

of 1950 were not filed by the appellant in the

present suit as evidence in support of his plea under Order 2, Rule 2, Civil Procedure Code. The learned trial Judge, however, without these pleadings being on the record inferred what the cause of action should have been from the reference to the previous suit contained in the plaint as a matter of deduction. At the stage of the appeal the learned District Judge noticed this lacuna in the appellant's case and pointed out, in our opinion rightly, that without the plaint in the previous suit being on the record, a plea of a bar

under Order 2, Rule 2, Civil Procedure Code was not maintainable."

8. In view of the aforesaid authoritative pronouncement

.

of the Constitution Bench of this Court the learned trial

Judge as well as the learned Single Judge of the High Court ought to have held that the plea raised by the defendants in the present case is barred at the threshold

as the defendants had not produced on the record of the trial court the pleadings in the first suit. Thus, there is a complete bar against the defendants from raising the bar of Order 2, Rule 2, sub-rule (3) against the plaintiff in

the present case. In this connection, we may refer to one submission made by the learned counsel for the defendants which appealed to the learned Single Judge of the High Court. He submitted that the averments in the

second suit of the plaintiff were that the first suit was

misconceived and proper relief was not prayed for. Therefore, it can be inferred that the second suit was hit by the bar of Order 2, Rule 2, sub-rule (3) CPC and he further submitted that at least in the counter filed in

reply to the special leave petition the defendants have produced the copy of the plaint in the first suit. We fail to appreciate how this effort on the part of the defendants

can be of any avail to them. Firstly, the Constitution Bench of this Court in Gurbux Singh case [(1964) 7 SCR

831: AIR 1964 SC 1810] has clearly ruled that there cannot be any inference about the bar of Order 2, Rule 2, sub-

rule (3) CPC which may be culled out from plaint in the second case and secondly once the plea of bar of Order 2, Rule 2, sub-rule (3) was not available to the defendants in the suit in the absence of the pleadings in the earlier suit being brought on the record by them in support of their case before the trial court they had missed the bus especially when even before the High Court no attempt was made by the defendants to produce the pleadings in the earlier suit by way of an application for additional evidence. Therefore, it is too late in the day for the defendants to contend that along with counter in the

special leave petition before us they had produced a copy of the plaint in the earlier suit. In the light of the clear pronouncement of the Constitution Bench in the case

.

of Gurbux Singh [(1964) 7 SCR 831: AIR 1964 SC 1810], it

must be held that it was not open to the defendants to raise the contention of the bar of Order 2, Rule 2, sub- rule (3) CPC in the present case and, therefore, the

learned Single Judge of the High Court was clearly in error in non-suiting the plaintiff on that ground.

16. This position was reiterated in S. Nazir Ahmad Vs.

State Bank of Mysore 2007 (11) SCC 75, and it was held: -

9. Now, we come to the merit of the contention of the appellant that the present suit is hit by Order 2 Rule 2 of

the Code in view of the fact that the plaintiff omitted to

claim relief based on the mortgage, in the earlier suit OS No. 131 of 1984. Obviously, the burden to establish this plea was on the appellant. The appellant has not even

cared to produce the plaint in the earlier suit to show what exactly was the cause of action put in the suit by the Bank in that suit. That the production of pleadings is a must is clear from the decisions of this Court in Gurbux

Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831]

and Bengal Waterproof Ltd. v. Bombay Waterproof Mfg.

Co. [(1997) 1 SCC 99: AIR 1997 SC 1398: 1996 Supp (8) SCR 695] From the present plaint, especially Paras 10 to 12

thereof, it is seen that the Bank had earlier sued for recovery of the loan with interest thereon as a money suit. No relief was claimed for recovery of the money on the foot of the equitable mortgage. In that suit, the Bank appears to have attempted in execution, to bring the mortgaged properties to sale. The appellant had objected that the suit not being on the mortgage, the mortgaged properties could not be sold in execution without an attachment. That objection was upheld. The Bank was therefore suing in enforcement of the mortgage by deposit of title deeds by the appellant.

17. It was laid down by the Hon'ble Supreme Court in

Syed Mohd. SalieLabbai v. Mohd. Hanifa, (1976) 4 SCC 780, that,

.

the respective pleadings of the parties in the previous suit have

to be brought on record to determine the case of the parties. The

recitals in the pleadings cannot be inferred from the judgment. It

was observed (at page 790):

"8. In the instant case according to the plaintiffs- respondents, the identity of the subject matter in the present suit is quite different from the one which was

adjudicated upon in the suits which formed the basis of the previous litigation. In our opinion, the best method

to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suits and then to find out as

to what had been decided by the judgments which operate as res judicata. Unfortunately however in this case the pleadings of the suits instituted by the parties

have not at all been filed and we have to rely upon the facts as mentioned in the judgments themselves. It is

well settled that pleadings cannot be proved merely by recitals of the allegations mentioned in the judgment."

18. This position was reiterated in V. Rajeshwari v. T.C.

Saravanabava, (2004) 1 SCC 551: 2003 SCC OnLine SC 1405,

wherein it was observed at page 556:

"12. The plea of res judicata is founded on proof of certain facts and then by applying the law to the facts so found. It is, therefore, necessary that the foundation for the plea must be laid in the pleadings and then an issue must be framed and tried. A plea not properly raised in the pleadings or issues at the stage of the trial, would not

be permitted to be raised for the first time at the stage of appeal [see (Raja) Jagadish Chandra DeoDhabal Deb v. Gour Hari MahatoAIR 1936 PC 258: 1936 All LR 786,

.

MedapatiSurayya v. TondapuBalaGangadhara

Ramakrishna Reddi [AIR 1948 PC 3 : (1947) 2 MLJ 511] and Katragadda China Anjaneyulu v. Kattaragadda China Ramayya [AIR 1965 AP 177 : (1965) 1 An LT 149 (FB)] ]. The

view taken by the Privy Council was cited with approval before this Court in State of Punjab v. Bua Das Kaushal (1970) 3 SCC 656. However, an exception was carved out by this Court and the plea was permitted to be raised,

though not taken in the pleadings nor covered by any issue because the necessary facts were present to the mind of the parties and were gone into by the trial court.

The opposite party had ample opportunity of leading the

evidence in rebuttal of the plea. The Court concluded that

the point of res judicata had throughout been in consideration and discussion and so the want of pleadings or plea of waiver of res judicata cannot be allowed to be urged.

13. Not only the plea has to be taken, but it has to be substantiated by producing copies of the pleadings, issues and judgment in the previous case. Maybe, in a

given case only a copy of the judgment in the previous suit is filed in proof of plea of res judicata and the

judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be

taken as enough proof. But as pointed out in Syed Mohd. SalieLabbai v. Mohd. Hanifa (1976) 4 SCC 780 the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. BhooralalAIR1964 SC 1810 : (1964) 7 SCR 831 placing on a

par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to

.

create the bar, ought to be brought on record. The plea is

basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of

action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali

Krishna Tagore v. Secy. of State for India in Council (1887-

88) 15 IA 186: ILR 16 Cal 173 pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and

what was heard and decided. Needless to say, these can

be found out only by looking into the pleadings, the issues and the judgment in the previous suit."

19. In the present case, the pleadings in the previous suit

have not been brought on record; therefore, it cannot be said

that the provisions of Order 2 Rule 2 will apply to the present

case.

20. Even otherwise, a perusal of the judgment passed in

Civil Suit No. 118 of 1995 (Ex. P6) shows that the plaintiff had

filed a civil suit against present defendant No.2 for a declaration

regarding her ownership over the suit land. Defendant No.1 was

not arrayed as a party in the suit. The necessity to file the suit

against defendant No.1 arose because defendants No.1 and 2

entered into a compromise (Ex. P4), vide which defendant No.2

acknowledged the defendant No.1 to be the owner of 1 kanal out

.

of the suit land. The Court passed a decree (Ex. P3), making

compromise a part of the decree. This suit was instituted on

16.8.1997 as per the endorsement made on the plaint, whereas

the previous suit was instituted on 4.5.1995, as per the judgment

(Ex. P6); therefore, the claim made in the present suit could not

have been made in the previous suit because the necessity to

seek the relief arose after the compromise and passing of the

decree by the Court on 1.9.1997. Therefore, it cannot be said that

the present suit for declaration was not maintainable in view of

the filing of the previous suit and this substantial question of

law is answered against the appellant.

Substantial Questions of Law Nos. 2, 3 and 4.

21. These substantial questions of law are

interconnected and are being taken up together for convenience.

It was submitted that the plaintiff admitted in her cross-

examination that the defendant had constructed a house on the

suit land; therefore, the plaintiff was required to value the suit

as per the value of the house. This submission is not acceptable.

The plaintiff never sought the possession of the house but she

sought the vacant possession of the land. It was laid down by the

.

Punjab High Court in Kewal Kishore v. Hamad Ahmad Khan, 1958

SCC OnLine Punj 167: PLR (1959) 61 P&H 268: AIR 1959 P&H 181

that the Court fee is to be paid on the value of the land when the

plaintiff seeks possession of the land and not of the house

constructed thereon. It was observed:

"5. The findings of the learned trial Court on issues Nos. 2

and 3 have also been assailed by Mr. Mital. On issue No. 2 the Court has found that the plaint is not properly

stamped for purposes of court fee and jurisdiction and on issue No. 3 it has found that the land in dispute is not properly described in the heading of the plaint. It is

conceded by the learned counsel for the respondents that the land in dispute at the time of its alienation was only an agricultural land on which land revenue was

permanently settled. According to the rules of this Court, the plaint for purposes of court fee in such a case is to be

valued at ten times the revenue and for purposes of jurisdiction it has to be valued at thirty times the land revenue and the plaint is so valued. The valuation of the

plaint has, however, been found to be insufficient for purposes of court fee and jurisdiction on the basis that on a part of the land some buildings have been erected by the defendants after the impugned alienations had been made in their favour and that the vacation of the buildings has not been taken into consideration in the matter of valuation of the plaint. The plaintiff in this suit, however, does not claim possession of any building and his suit is limited to the possession of the land as it was at the time of the original sale. The court fee payable in such a suit cannot be dependent upon the defence which may

be raised and we are unable to understand how the existence of improvements can compel the plaintiff to pay a court fee on something which he does not claim and

.

which the defendants are entitled to remove or regarding

which they may or may not in equity be entitled to claim any compensation. If the defendants have erected buildings on the land, the transaction regarding which

was liable to be impugned by the plaintiff or is successfully impugned by him, they cannot by this reason alone compel the plaintiff to pay court fee on the cost of buildings which have been erected by them. Findings of

the learned trial Court on issue No. 2 are therefore clearly erroneous."

22. A similar view was taken by this Court in Niram Dass

Vs. Hirda Ram ILR 1975 HP 659 and it was held that when the

plaintiff files a civil suit seeking possession of the land only and

the garden and houses were added subsequently, the suit is to be

valued for the land only. It was observed:

"8. The real question is whether the value of the land alone is to be considered for determining the value of the

suit or regard must also be had to the value of the orchard. There is no dispute that the plaint in the suit

refers to the land only and the relief also relates to the land only. The orchard was planted by the petitioner soon after the land was gifted to him. Learned counsel for the petitioner relies on Shanti Prasad vs. Mahabir Singh (A.I.R. 1957 All. 402.), where a Full Bench of the Allahabad High Court has held that although the plaintiff had not claimed any relief in respect of the buildings and the garden in a suit for possession of land, and he is found entitled to the relief he has claimed, the defendant must either remove the buildings and do away with the garden in question or leave them as they are to be taken by the plaintiff along with the land. In the circumstances, it was laid down that

the buildings and garden must be held to be affected by the relief sought within the meaning of the term used in Section 3 of the Suits Valuation Act. It was pointed out

.

that even if the suit was deemed to be a suit for

possession of land alone, as it involved a building or garden standing on it the market value of the building and the garden standing on the land was bound to be

added to the value of the land in order to determine the value of the land itself. Reliance was placed on Rule 3 of the U. P. Suits Valuation Act, 1942. Now, this provision expressly lays down that in suits for possession of land,

the value of the land for purposes of jurisdiction shall be determined by aggregating the value of the land and the market value of buildings or gardens situated thereon. The decision turned on the particular language of Rule 3

(e). Such a provision is absent in the Act before me. My

attention has been drawn to Divisional Forest Officer, Sarahan Forest Division of Simla Forest Circle, Himachal Pradesh vs. Daut and Ors (A.I.R. 1968-S.C. 612.), but in that case, the definition of land included orchards standing

thereon.

9. In Kewal Kishore vs. Hamad Ahmad Khan (A.I.R. 1959 Pun. 181) a Division Bench of the Punjab High Court held

that in a suit for possession of land, on a part of which some buildings had been erected, the court fee payable in

such a suit would not depend on the defence which might be raised but would be measured by the value of the land

alone. In Durga Das vs. Nihal Chand (A.I.R. 1928 Lah. 852.), Jai Lal, J. held that in a suit for declaration, the market value of the land alone should be taken into consideration for determining the jurisdiction of the court and the amount of the court fee to be paid. It further observed that the plaintiffs claimed possession of the land and not of the building on the land.

10. It is said that different considerations arise when it is a case of land with trees thereon. It is urged that the case is entirely different from one of land on which a building has been constructed. It is pointed out, on the terms of

Section 8 of the Transfer of Property Act that the definition of property means land and all things attached to the land. In my opinion, having regard to the scheme of

.

Section 7 of the Court Fees Act such an inference is not

easily possible. Section 7 (v) speaks separately of land and houses and gardens. When a garden or orchard is the object of the suit, the suit must be valued accordingly.

Where, however, it is a suit for land only, it is the land alone which must be valued.

11. I am of the opinion that in a case such as this, the value of the land for the purposes of court fee and jurisdiction

should be taken to be in stricto sensu and cannot include the value of an orchard planted thereon.

12. It is also contended by the petitioner that there is a

distinction between a suit filed against a trespasser for possession of land and a suit in which the defendant was

in possession originally under a legal right. For the purpose of the question before me, I am unable to appreciate why such a distinction should be drawn. If the

orchard has been planted by the defendant without the permission of the plaintiff-there is no allegation here that permission had been given- the plaintiff may confine

himself to relief in respect of the land alone."

23. This position was reiterated in Krishna Devi Vs.

Subhadra 2004 Latest HLJ 655 wherein it was held:-

"14. For the purpose of court fee, the plaintiff has valued the suit under Section 7 (iv) (c) of the H.P. Court Fee Act, 1968 (For Short 'Court Fee Act1). Both the Courts below on scrutiny of the evidence on record have found that at the time of the institution of the suit, there was no orchard on the land in dispute. Defendant, No.1 while appearing as DW-1 has admitted and stated that the apple trees were planted by him over the land in dispute during the pendency of the suit. The oral testimony of DW-1 stands corroborated by the copy of the application (Ext. PW-4/A), a copy of the reply filed to the application (Ext

PW-4/B) and a copy of the order of revenue officer dated 25.2.1987 to prove that the apple trees were planted on the land in dispute in the year 1988 and not prior thereto.

.

Seeking decree for possession of the agricultural land, the

valuation for the purposes of jurisdiction and Court fee is required to be assessed on the basis of the land revenue payable of the land. The plaintiff, therefore, had valued

the suit for the purposes of Court fee and jurisdiction on the basis of the land revenue payable of the and in dispute. Therefore, both the courts below have rightly held that the suit of the plaintiff is covered by Section

7(iv) (c) of the Court Fee Act The suit of the plaintiff in the alternative for possession of the land in dispute was not for an orchard land at the time of filing of the suit and, therefore the suit was not to be valued for the purposes of

court fee and jurisdiction at the time of market value of

the orchard land.

15. In Bhagwat Parshad Vs. Mukat Lal and others I.LR. (Himachal Series) (1985), Page 39, the teamed Single Judge of this Court held that once it was found that the suit was

for declaration with consequential relief, the court fee has to be paid as prescribed under Section 7 (iv) (c) read with the proviso at the end and paragraph (v) of Section 7 of

the said Act The result was that the plaintiff had to pay court-fee on the basis of the market value of the property

in dispute. As observed hereinabove, in the present case, the land in dispute at the time of the institution of the suit

of the plaintiff was not an orchard land, and therefore, the plaintiff had rightly valued the suit for the purposes of court fee and jurisdiction. In Kanwar Partap Singh Vs. Minakshi Devi and others 1989 (i) Sim. L.C. 107, the learned Judge of this Court held that in suits for a declaratory decree and consequential relief in regard to a house, the court fee has to be paid on the market value of the house under Section 7(iv) (c),(v) proviso II of HP. Court Fees Act, 1968. In the present case no help can be derived by the defendants to the proposition of law settled in the said judgment Thus, substantial questions

No. 1 and 2 are answered in favour of the plaintiff and against the defendants."

24. In the present case, the plaintiff is not seeking

.

possession of the house and the value of the house is irrelevant

to determine Court fees and jurisdiction. The copy of Jamabandi

(Ex. P1) shows that the suit land was assessed to the land

revenue and it was to be assessed based on the land revenue for

Court fees and jurisdiction. Hence, there is no infirmity in the

assessment made by the plaintiff. The suit, as valued, was within

the pecuniary jurisdiction of the Court and the learned Trial

Court did not err in entertaining the suit. Further, no prejudice

was caused to any side by not framing an issue regarding the

Court fees and jurisdiction because the suit was within the

pecuniary jurisdiction of the Court. Consequently, these

substantial questions of law are answered against the appellant.

Substantial Question of Law No.5.

25. Learned First Appellate Court did not rely upon the

findings recorded in the previous suit, rather it held that the

defendants had claimed in the present suit that Labha Ram had

executed a Will in favour of defendant No.2 but no Will was

produced on record. Hence, this substantial question of law is

answered against the appellant.

.

Substantial Question of Law No.6.

26. The plaintiff sought the vacant possession of the suit

land. Defendant No.1 claimed ownership based on a decree in his

favour passed by the Civil Court. Therefore, defendant No.1 was

claiming in denial of the title of the real owner. In such a

situation, the question of identification is meaningless. It was

laid down by this Court in Basant Singh Versus Kishan Dayal RSA

no. 187 of 2007, decided on 13.09.2019 that once the title of the

plaintiff is admitted by taking the plea of adverse possession,

the argument that property is not identifiable falls to the

ground. It was observed:

"21. Once a plea of adverse possession has been raised, it not only pre-supposes the title over the suit land of

the plaintiff, but it even admits the identification of the property or else this plea would be in the air. After all, if the defendant is in adverse possession, then obviously, the same is over the property in dispute or else he would not have raised such a plea. A plea of adverse possession implies an admission of title, which is supposedly extinguished.

22. In taking this view, I am supported by the judgment of the Punjab and Haryana High Court in Jagat Singh and others vs. Sri KishanDass and others

2008 (149) P. L. R. 67, the relevant portion whereof reads as under:

"5. The question that the plaintiff has not

.

established the identity of the suit land or the

property cannot be identified, is not borne out from the record. The defendant-appellants have raised a plea of adverse possession. Once a plea

of adverse possession is raised, it pre-supposes the title over the suit land of the plaintiff. The title of the plaintiff is deemed to be admitted, and the argument that the property is not

identifiable falls to the ground. Therefore, the argument raised by learned counsel for the appellants that an infructuous decree could not be passed is not made but in view of the plea of

adverse possession over the suit land raised by

the appellants."

23. On the basis of the aforesaid reasoning, even the findings recorded by the learned Courts below to the

effect that the demarcation has not been conducted in accordance with the instructions issued by the Financial Commissioner are erroneous as it was for the

defendant to have established a better title than the plaintiff, especially, when he has not been able to prove

his adverse possession over the suit land."

27. This position was reiterated in Nek Ram v. Surjan

Singh, 2019 SCC OnLine HP 1066 = 2019 (4) CivCC 834. Therefore,

the question of identification will not arise in the present case.

28. Hence, it cannot be said that the learned First

Appellant Court erred in granting the relief of injunction without

any tatima and this substantial question of law is answered

against the appellant.

Substantial Question of Law No.7.

29. Defendants admitted in para-1 of the written

.

statement that deceased Labha Ram was the owner of the land to

the extent of 78/182 shares. They claimed that Labha Ram had

executed a Will in favour of defendant No.2. Learned First

Appellate Court had rightly held that no such Will was produced

on record. Since the plaintiff is the natural heir of deceased

Labha Ram being his wife; therefore, she was entitled to succeed

to his estate. Similarly, Sunehro being the co-widow was

entitled to succeed to her estate. The defendants had to establish

a better right than the plaintiff to defeat her claim. Defendant

No. 2 claimed to be the beneficiary under the Will which he failed

to produce before the Court. Hence, the learned First Appellate

Court had rightly held that defendant No.2 cannot be called to be

the owner of the suit land. Defendant No.1 claimed that Labha

Ram had executed an Agreement to Sell in his favour. He has not

filed any suit against the legal representative of Labha Ram and

cannot derive any benefit from the same. He had not even

produced the agreement before the Court and could not take

even the benefit of Section 53A of the Transfer of Property Act.

Thus, the learned First Appellate Court had rightly passed a

decree of injunction and possession against the defendants.

There is no infirmity in the judgment and decree passed by the

.

learned First Appellate Court and this substantial question of

law is answered against the appellant.

Substantial Question of Law No. 8:

30. The learned Trial Court dismissed the suit by holding

that the plaintiff was seeking to establish her title based on the

claim made in the previous suit. This was not correct, as was

pointed out by the learned First Appellate Court. The plaintiff

had claimed the ownership based on her being a widow of Labha

Ram and not based on the judgment in the previous suit.

Learned Trial Court had also dismissed the suit on the ground of

the pendency of the previous suit, which has nothing to do with

the present case. Hence, the learned First Appellate Court had

rightly reversed the judgment and decree passed by the Trial

Court in the present suit.

31. It was submitted that the suit was not maintainable

in view of the provisions of Order 23 Rule 3A of CPC. This

submission cannot be accepted. Admittedly, the plaintiff was

not a party to the previous litigation and she is not bound by the

same. It was laid down by Hon'ble Supreme Court in Sneh Gupta

v. Devi Sarup, (2009) 6 SCC 194 that a compromise decree is not

.

binding upon the persons who are not parties thereto. It was

observed: -

"24. Order 23 Rule 3 of the Code of Civil Procedure provides that a compromise decree is not binding on such defendants who are not parties thereto. As the appeal has

been allowed by the High Court, the same would not be binding upon the appellant and, thus, by reason thereof, the suit in its entirety could not have been disposed of."

32. Madhya Pradesh High Court also took a similar view

in Santosh Kumar v. Hachchu, 2010 SCC OnLine MP 363, wherein it

was observed: -

"17. From the aforesaid judgment of the Hon'ble Supreme Court, it is clear that a compromise decree is not binding on such defendants, who are not parties thereto. In the

present case, it is clear that Amarchand was minor at the time of the passing of the decree of Civil Suit No.

393-A/1980. No guardian was appointed on behalf of him. Hence, it could be held that Amarchand was not a party to

the decree. In such circumstances, the judgment and decree passed by the trial Court in Civil Suit No. 393-A/1980 is not binding on Amarchand. The Provision of Order 23, Rule 3-A is applicable only to the persons, who are parties to the compromise, however, the persons, who were not party to the compromise, can institute a suit. The decree passed in Civil Suit No. 393-A/1980 is a decree against all the four persons including Amarchand. If it is not executable against Amarchand, then the decree is also not executable against the other defendants. Hence, the decree was void and in that circumstances, the suit filed by the plaintiffs-respondents was maintainable.

18. I am conscious of the judgments passed by this Court and other High Courts to the effect that in view of the Order 23, Rule 3-A of the Civil Procedure Code, an

.

independent suit is not maintainable to challenge a

compromise decree, however, if a person is not a party to the decree and the decree is void, then certainly a suit is maintainable and the bar of Order 23, Rule 3-A would not

be applicable in that case."

33. This position was reiterated in Bondar v. Mishribai,

2019 SCC OnLine MP 6124, wherein it was observed: -

"11. The most important aspect of the case is that

Mishribai was not a party to the judgment and decree dated 13-12-2014 passed by Lok Adalat on account of a

compromise and therefore, once she was not a party, the judgment and decree are certainly not at all binding upon. Her husband was also not alive and the factum of death of

her husband has not been disputed by the learned counsel for the applicant before this Court. The husband expired on 30-5-2012 and this Court is really not able to digest as

to how the husband, who is no more, could have entered into a compromise in respect of Civil Suit No. 12-A/2014."

34. Jammu & Kashmir High Court held in Nikhat Nabi Vs.

M/s Fancy Fabrics and others (J and K Bank Limited), CM(M) No.

265 of 2022, decided on 22.9.2023 that Order 23 Rule 3A does not

apply to third parties. It was held: -

"On a close reading of the provision of Order 23 Rule 3(A) what emerges is that the bar to sue is limited and applicable only to parties to the compromise and not to third party, stranger, or to those who have not signed the consent terms and it has been held by the Apex Court in a case titled as Banwari Lal vs. Smt. Chando Devi reported in

(1993) 1 SCC 581 that a stranger to the compromise is not precluded from filing a suit and the provisions of Order 23 Rule (3A) would not operate against such stranger."

.

35. Therefore, the submission that the present suit was

barred is not acceptable and this substantial question of law is

decided against the appellant.

36. Consequently, there is no infirmity in the judgment

and decree passed by the learned First Appellate Court; hence,

the present appeal fails and the same is dismissed.

37. Pending application(s), if any, also stand(s) disposed

of.

(Rakesh Kainthla) Judge 15th June, 2024 (Chander)