Punjab-Haryana High Court
(O&M) Lachhi vs Hukam Chand Etc on 2 April, 2024
Neutral Citation No:=2024:PHHC:044212
RSA-53-1990 (O&M). -1- 2024:PHHC:044212
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH.
135
RSA-53-1990 (O&M).
Date of Decision: 02.04.2024.
LACHHI
... Appellant
Versus
HUKAM CHAND AND OTHERS
... Respondents
CORAM: HON'BLE MR. JUSTICE VINOD S. BHARDWAJ.
Present: Mr. Umesh Aggarwal, Advocate,
for the appellant.
Mr. O.P. Goyal, Sr. Advocate, with
Mr. Yugank Goyal, Advocate, for respondent No.1.
VINOD S. BHARDWAJ, J (ORAL).
Appellant-defendant has preferred the present Regular Second
Appeal against the judgment and decree dated 31.05.1989 passed in Civil
Suit No.107 RBT of 01.10.1987 by the Court of Addl. Senior Sub Judge,
Palwal, vide which the suit of the respondent-plaintiff was decreed as well
as against the subsequent dismissal of Civil Appeal No.42/13 instituted on
15.06.1989 decided vide judgment and decree dated 20.09.1989 by the
Additional District Judge, Faridabad.
2 Briefly summarized, the facts of the present case are that
respondent-plaintiff filed a civil suit for seeking a decree for the possession
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of agricultural land mesuring 5 kanals 17 marlas comprised in Khasra
No.57/10/2 situated within the revenue estate of village Sultanpur, Tehsil
Palwal. As per the averments contained in the plaint the respondent-plaintiff
was tenant under the owner namely Tikam Dass on agricultural land bearing
Khewat/Khatauni No.176/192, Killas No.57/10/2 measuring 5 kanals 17
marlas and was so recorded in the revenue record pertaining to the year
1980-81, 1975-76 and 1970-71. The khasra girdawari also established his
possession over the suit land as none of respondent-plaintiff was recorded in
the column of cultivation.
3 The respondent-plaintiff had earlier filed a civil suit in the
Court of Sub Judge First Class, Palwal, against the appellants-defendants
for permanent injunction regarding the land in dispute bearing Civil Suit
No.416 of 07.06.1984 which was decreed against the appellant-defendant
on 14.08.1986 and a decree of permanent injunction restraining him from
interfering in the possession of the respondent-plaintiff was passed. During
the same period, the appellant-defendant had also filed another civil suit
against the respondent-plaintiff in which the appellant-defendant included
the above land in dispute. The said suit of the appellant-defendant was filed
on 02.06.1984 bearing Suit No.303. Both the said suits were consolidated
and were decided vide a common judgment and decree dated 14.08.1986
whereby the suit of the respondent-plaintiff regarding the land in dispute as
in Civil Suit No.416 of 07.06.1984 was decreed and the suit filed by the
appellant-defendant regarding the same land was dismissed. The
respondent-plaintiff was held to be in possession of the said land. No appeal
against the said judgment and decree had been preferred by the appellant-
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defendant in the above said civil suit No.416 of 1984 which was decreed on
14.08.1986 or against the judgment and decree passed in Civil Suit No.303
titled Narangi Vs. Hukam Chand and another.
4 It was further averred that after passing of the judgment and
decree, the appellant-defendant took forcible and illegal possession of the
land in dispute in the early hours of the day despite the injunction
restraining the appellant-defendant from interfering in the possession of the
respondent-plaintiff. An execution petition bearing No.150 of 1986 was
filed on 30.10.1986 with a prayer for delivery of the possession of the land
in dispute. In the said execution application, warrant of possession for
delivery of the land in dispute was issued by the Executing Court, however,
the appellant-defendant is stated to have restrained the authorities from
seeking possession qua which a criminal case under Section 325/34 IPC
was also registered against the appellant-defendant which was pending as
on the date of institution of the suit. A further civil suit for declaration was
also filed by the appellant-defendant bearing No.517 of 1987 in the Court of
the then Addl. Senior Sub Judge, Palwal, wherein the decree in civil suit
No.416 of 1984 dated 14.08.1986 was separately challenged. The said suit
was also dismissed by the Addl. Senior Sub Judge, Palwal, vide judgment
and decree dated 07.09.1987.
5 At the same time, objections were filed by the appellant-
defendant in the execution petition under Section 47 CPC in
August 1987 and vide order dated 12.09.1987, the said objections were
accepted by the executing Court and the execution application was
dismissed for the reason that the appellant-defendant had already taken the
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possession of the land in dispute and since the decree was for permanent
injunction, the same cannot be considered as a decree for possession. The
respondent-plaintiff was thus required to take recourse to the appropriate
remedy for seeking possession in accordance with law. Hence, the present
suit was filed.
6 The appellant-defendant entered appearance before the Sub
Judge First Class, Palwal wherein his reply was filed and various issues
were raised including regarding the maintainability of the suit and it was
also claimed that the defendants-appellants and his father, prior to his death,
had been in cultivating possession of the suit land as tenant and that the
plaintiff never raised any objection with respect to the cultivating
possession of the appellant-defendant No.1 or his predecessor in interest. It
was alleged that appellant-plaintiff got his name entered as gair mausi in the
revenue record regarding the suit land without the knowledge of the
appellant-defendant and the revenue officers did not follow the prescribed
procedure as per law. The entries as recorded in the revenue record were
thus not binding on the rights of the appellant-defendant and conferred no
right, title or interest in the respondent-plaintiff.
7 While filing the para-wise reply on merits, the appellant-
defendant claimed to be in actual physical possession of the suit land and
having succeeded to the same after the demise of his father and claimed that
the respondent-plaintiff got revenue entries recorded in connivance with the
revenue officials and that he is taking advantage of the wrongful entries
recorded in the revenue record. A prayer for dismissal of the suit was thus
made.
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8 Replication was filed to the plea raised by the appellant-
defendant. On completion of the pleadings, the following issues were
framed:-
1 Whether the plaintiff was in possession over the suit
land as tenant under Tikam Dass ?OPP
1-A Whether the suit is barred by the principle of
resjudicata ?OPD
2 Whether the plaintiff has got no locus stsandi to file the
present suit? OPD
3 Whether the plaintiff has got no cause of action to file
the present suit? OPD
4 Whether the plaintiff is stopped by his act and conduct
from filing the present suit ? OPD
5 Whether the defendant No.2 and 3 are unnecessary
party ? OPD
6 Whether the defendants are entitled to special costs ?
OPD
7 Relief.
9 Parties led their respective evidence and upon consideration of
the same, Addl. Senior Sub Judge First Class, Palwal, recorded its finding
that the respondent-plaintiff was in actual possession of the suit land in
dispute prior to the filing of the Civil suit no.416 of 1984 and was forcibly
dispossessed by the appellant-defendant on 14.08.1986 when the decree was
passed in the said civil suit. It was also held that the appellant-defendant are
barred by the principle of res judicata to take this plea again that they had
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been in cultivating possession of the suit land even prior to the earlier
decree dated 14.08.1986 passed between the parties which had already
attained finality.
10 Aggrieved thereof, an appeal was thereafter filed by the
appellant-defendant before the District Judge, Faridabad. The said appeal
was decided vide judgment and decree dated 21.01.1989 by the Additional
District Judge, Faridabad. The same was dismissed after consideration of
the arguments advanced on behalf of the appellant-defendant and by
recording a finding that the Court had specifically concluded in favour of
the respondent-plaintiff in civil suit No.416 of 1984 that he was in
possession of the suit land measuring 5 kanals 17 marlas comprised in said
khewat/khssra numbers and an order of restrain had been against the
appellant-defendant from interferring in the possession of Hukam Chand. It
was held that the appellant-defendant was hence not in lawful possession of
the land in dispute. A mere dismissal of the execution application cannot be
said to operate as res judidcata because the said application was dismissed
on the ground that after passing of the decree Hukam Chand had not been
dispossessed hence, there was no violation of the judgment and decree
dated 14.8.1986 passed in civil suit No.416 of 1984 and that the decree not
being that of possession, the same cannot be ordered.
11 Aggrieved of the dismissal of the appeal, the present regular
second appeal had been filed.
12 Learned counsel for the appellant-defendant has vehemently
argued that the appellant-defendant and prior to him his predecessors-in-
interest had been in cultivating possession of the suit land and that there was
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no averment raised in the plaint as to how and under what circumstances,
the possession of the suit land had been taken over by them. He further
contends that the respondent-plaintiff had claimed that he had taken over
the possession but in the absence of any specific details about being
divested of the possession, the present suit seeking possession of the suit
land was not maintainable. He further contends that the execution
application filed by the respondent-plaintiff was dismissed, hence, the
possession of the appellant-defendant has to be protected. The judgments
and decrees passed by both the Courts are bad and are liable to be set aside.
13 Controverting the said argument, learned counsel for the
respondent-plaintiff argues that a specific plea as regards forcible
dispossession from the suit property had been taken by the respondent-
plaintiff and it was also stated that an FIR under Section 325/34 IPC, in
relation to the forcible dispossession and causing beatings to the
respondent-plaintiff had also been registered, hence, there was a forcible
dispossession of the respondent-plaintiff from the suit land including the
specific incident. He further contends that the execution petition was not
dismissed on the ground of any demerit rather the same was dismissed on
the ground that the dispossession was not after the passing of the decree and
that as a suit for injunction had already been decreed, the respondent-
plaintiff was required to pursue his remedies for seeking possession in a
manner known to law.
14 No other argument has been raised.
15 I have heard learned counsel appearing for the respective
parties and have also gone through the record.
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16 After going through the same, I am of the opinion that the
present appeal is without any merits and the same deserves dismissal for the
reason that the entire case of the appellant-defendant is based on a plea that
the appellant-defendant and prior thereto his predecessors-in-interest were
in actual physical and cultivating possession of the land in dispute. It is
further well established that both the parties i.e. the respondent-plaintiff as
well as the appellant-defendant had preferred separate civil suits before the
civil Court and that the same were clubbed together and were decided by a
common judgment and decree dated 14.08.1986. The civil suit No.416
preferred by the respondent-plaintiff seeking injunction had been allowed
whereas the suit filed by the appellant-defendant bearing civil suit No.303
was dismissed. No challenge to the said judgment and decree dated
14.08.1986 was raised at that point of time and that the said judgment and
decree had attained finality. An attempt was later made by the appellant-
defendant to raise a challenge to the above said judgment and decree by a
separate civil suit which was again dismissed by the Court of Sh.R.S.
Baswana, the then Additional Senior Sub Judge, Palwal vide judgment
dated 07.09.1987.
17 Hence, the only plea taken by the appellant-defendant that he
was in possession of the land in question as a tenant could not be
established by the appellant-defendant in any of the proceedings that had
been initiated and including the proceedings that had been filed at the
behest of the appellant-defendant. The said plea of the appellant being in
possession having not been accepted by the Courts on more than occasions,
do not give a fresh cause of action to the appellant-defendant to re-agitate
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the said issue and to claim himself to be in actual physical possession of the
land and staking right to defend such possession. The revenue record
reflected and established on actual and physical possession of the
respondent-plaintiff and the same had been accepted by the Courts.
18 A concurrent finding of fact has been recorded not only in the
present civil suit but also in the suit that were filed earlier and between the
parties. The findings recorded therein operate also as a res judicata against
the appellant-defendant and he cannot seek to reopen the said judgment and
decree in a fresh separate suit by raising objection to the claim raised by the
respondent-plaintiff, for seeking restoration of his possession, on the basis
of his right which stands accepted in the judgment and decree dated
14.08.1986.
19 Further, I find that there is no illegality, perversity or failure on
the part of both the Courts in appreciation of the evidence led on record.
20 The present appeal is accordingly dismissed. The judgment and
decree 31.05.1989 passed by the Court of Addl. Senior Sub Judge, Palwal,
as well as the judgment and decree dated 20.09.1989 by the Additional
District Judge, Faridabad, are affirmed.
21 Order dated 08.11.1990 staying dispossession of the appellant
stands vacated.
22 Pending, misc. application(s), if any shall also stand(s)
disposed of accordingly.
April 02, 2024. (VINOD S. BHARDWAJ
raj arora JUDGE
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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