Punjab-Haryana High Court

Niranjan Singh vs Beeru Ram on 8 April, 2024

                                       Neutral Citation No:=2024:PHHC:047499


                                                             2024:PHHC:047499




          IN THE HIGH COURT OF PUNJAB AND HARYANA
                       AT CHANDIGARH
                                       ****

                                                                  RSA-2716-1989

Niranjan Singh @ Nanju                                             .....Appellant
                                       Vs.
Beeru Ram                                                        .....Respondent
                                   ****
                          Reserved On.: 14.03.2024
                         Pronounced On: 08.04.2024
                                   ****

CORAM: - HON'BLE MR. JUSTICE DEEPAK GUPTA

Argued By: Mr. Bhavnik Mehta, Advocate
           for the appellant.

             Mr. Ashwani Kumar Chopra, Senior Advocate with
             Mr. Vidul Kapoor, Advocate for the respondent.

                                                ****
DEEPAK GUPTA, J.

This Regular Second Appeal is directed against the judgment and

decree dated 02.09.1989 passed by learned District Judge, Jalandhar i.e. First

Appellate Court, whereby Civil Appeal N: 605 of 1987 filed by defendant

Beeru Ram (respondent herein) was allowed, setting aside the judgment and

decree dated 15.06.1987 of learned Trial Court, whereby the Civil Suit N: 539

of 1985 filed by the plaintiff Niranjan Singh (appellant herein) had been

decreed. Resultantly, the suit was dismissed by the appellate court. Thus, this

RSA is against reversal by the First Appellate Court of the judgment of the trial

Court.

2. Lower Court record was called and the same has been perused. In

order to avoid confusion, parties shall be referred as per their status before the

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trial Court.

3.1 Subject-matter of the suit is a "Tour" marked by letter 'ABCD'

and shown in red colour in the site plan attached with the plaint and detailed &

described in head-note of the plaint. Plaintiff Niranjan Singh claimed to be

owner of the suit land. According to him, he had earlier 1/3rd share in the suit

property. He had filed a civil suit for partition qua his 1/3rd share against the

other co-sharers/collaterals. That suit was decreed vide judgment dated

13.01.1980 (Ex.P8). Appeal filed by one of the defendant Nazir Singh against

that judgment, was dismissed by the Appellate Court on 16.07.1982 (Ex.P10).

Subsequently, plaintiff purchased respective shares from his other collaterals

by virtue of sale deeds dated 14.03.1983 and this way, he became exclusive

owner of the entire suit property.

3.2 Further case of the plaintiff was that during pendency of the

aforesaid proceedings, defendant tried to take forcible possession of the suit

property. Plaintiff filed a civil suit for permanent injunction. In the meantime,

defendant succeeded in taking the possession and in the written statement, took

the plea of adverse possession. Suit of the plaintiff was dismissed by the trial

Court on 15.4.1983 and plea of defendant was upheld to the effect that he had

become owner of the suit property by way of possession. Plaintiff filed appeal

[CA N: 261 of 1984] against said judgment, which was dismissed by the

Appellate Court on 18.09.1985 (Ex.P12) but finding was recorded that

defendant Beeru Ram had not become owner by adverse possession and rather,

his possession was illegal and as a trespasser and that plaintiff was entitled to

recover possession.

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3.3 It further emerges that defendant Beeru Ram had filed an

independent suit for declaration to have become owner of the suit property by

way of adverse possession. That Civil Suit N: 110 of 1983 titled "Beeru Ram v.

Nanju" was decreed on 19.10.1983 (Ex.D1). No appeal was filed against the

said judgment.

3.4 In the present suit, plaintiff prayed for decree for possession of the

suit property being owner thereof.

4. Defendant contested the suit. He raised objection that suit was

barred by principal of res judicata on account of a finding in his favour vide

judgment dated 19.10.1983 to the effect that he had become owner of the suit

property by way of adverse possession and that that suit was between the same

parties and no appeal had been filed against that.

5. Following issues were framed by the Trial Court :-

1. Whether the plaintiff is owner of the suit property? OPP

2. Whether the plaintiff has got no locus-standi to file the present suit? OPD

3. Whether the suit as framed is not maintainable? OPD

4. Whether the suit is barred by the principle of res-judicata?OPD

5. Whether the suit is properly valued for the purpose of court fee and jurisdiction? OPP

6. Whether the defendant has become owner of the suit property by adverse possession? OPD

7. Whether the suit is within limitation? OPP

8. Whether the plaintiff is entitled to the possession as prayed for? OPP

9. Relief.

6. Trial Court found that plaintiff was owner of the disputed property

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to the extent of 2/3rd share and that possession of the defendant had not

matured into ownership. It was further held by the Trial Court that suit was not

barred by principal of res judicata, by referring to "M. Kunhirama Kurup and

others v. Mayyarath Krishnan Kurup" AIR 1987 Kerala 13 so as to hold that

when there are two conflicting findings in two decrees between the same

parties on the same subject-matter, the later decision in point of time must

prevail over the first one, and the earlier decision must be regarded as dead. It

was further found that the suit was properly valued for the purpose of Court fee

and jurisdiction and that plaintiff had locus standi to file the present suit. Suit

was further held to be within time. With these findings, suit was decreed and

plaintiff was held to be entitled to the possession of the suit property by way of

judgment dated 15.06.1987.

7. In the appeal filed by defendant, learned Appellate Court found

that issues No.4 & 6 were the only material issues, on which the fate of the

case depends. It was noticed that both the parties had earlier instituted two

independent suits. Suit No.110 of 1983 titled "Beeru Ram v. Nanju and Others"

was brought by the present defendant Beeru Ram, wherein he had pleaded to

have become owner of the suit property by way of adverse possession.

Necessary issues to that effect were framed and after evidence, the suit was

decreed on 19.10.1983 and no appeal against the judgment was filed by the

plaintiff of the present case i.e. Niranjan Singh @ Nanju. Learned Appellate

Court found further that plaintiff had filed another suit for permanent

injunction, which was dismissed on 15.04.1983 and the trial Court had held

that defendant had become owner of the suit property by way of adverse

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possession but in the appeal filed by the plaintiff, though the finding regarding

the defendant having become adverse possession was reversed but the appeal

was dismissed and that this judgment was delivered by the Appellate court on

18.09.1985. Learned Appellate Court found that decision in civil suit No.110 of

1983 decided on 19.10.1983 was prior in time. The issue relating to ownership

by adverse possession, between the same parties, regarding the same subject-

matter had already been finally decided and therefore, that finding had become

res judicata. The Appellate Court relied upon "Lonankutty v. Thomman and

another" AIR 1976 Supreme Court 1645. By holding the judgment dated

19.10.1983 binding upon the rights of the plaintiff, as the same had become res

judicata, the Appellate Court accepted the appeal of the defendant and

dismissed the suit of the plaintiff by way of judgment and decree dated

02.09.1989.

8. It is against the aforesaid judgment of the First Appellate Court

that present appeal has been filed.

9.1 Learned counsel for the appellant- plaintiff has contended that

Trial Court rightly decreed the suit by holding that it is the later judgment,

which will prevail, by relying upon "Kunhirama Kurup and others v.

Mayyarath Krishnan Kurup" AIR 1987 Kerala 13. Learned counsel has also

referred to "Padmanabhan Krishnan v. Mathevan Pillai Kesava Pillai" AIR

1952 (Travancore Chochin) (DB) 294; "Moturi Seshayya and others v. Sri

Rajah Venkatadri Appa Row" AIR 1917 (Madras) 950.

9.2 Learned counsel for the appellant also contends that no appeal was

filed against the finding of the Appellate Court in judgment dated 18.09.1985

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passed in CA No.261 of 1984, whereby it was held that defendant had not

become owner by way of adverse possession.

10. On the other hand, learned counsel for the respondent contends

that Appellate Court has rightly upset the finding of the Trial Court and by

placing reliance upon "Lonankutty v. Thomman and another" AIR 1976

Supreme Court 1645, has rightly come to the conclusion that it is the previous

judgment rendered by the complainant Court, which was prevail. Learned

counsel further submits that since the suit of the plaintiff for injunction was

dismissed on 15.04.1983 filed by the said plaintiff was also dismissed on

18.09.1985, therefore, there was no legal requirement to challenge the finding

of the Appellate Court to the effect that defendant was not the owner by

adverse possession particularly when a competent authority had already given

finding in favour of the defendant vide its judgment 19.10.1983 (Ex.D1) to the

effect that defendant had become owner of the suit by way of adverse

possession and that judgment had never challenged.

11. I have considered submissions of both the sides and perused the

record.

12. The sole substantial question of law as involved in the present

appeal is as to which of the two conflicting judgments between the same

parties on the same issue, both rendered by competent Courts, shall prevail

under Section 11 of the Code of Civil Procedure.

13. In "Ganga Bai v. Vijay Kumar and Others" 1974 AIR (SC) 1126,

Hon'ble Supreme Court has held that under Civil Procedure Code, appeal lies

only against decree; or orders passed under Order 43 Rule 1 CPC and that

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against mere finding, appeal cannot lie. Elaborating, Hon'ble Supreme Court

held as under:-

"Under Section 96(1) of the Civil Procedure Code, save where otherwise expressly provided by the Code or by any other law for the time being in force, an appeal lies from every decree passed by any Court exercising original jurisdiction, to the Court authorised to hear appeals from the decisions of such Court. Section 100 provides for a second appeal to the High Court from an appellate decree passed by a Court subordinate to the High Court. Section 104(1) provides for appeals against orders of the kind therein mentioned and ordains that save as otherwise expressly provided by the Code or by any law for the time being in force an appeal shall lie "from no other orders." Clause (i) of this section provides for an appeal against "any orders made under Rules from which an appeal is expressly allowed by rules". Order 43, Rule 1 of the Code, which by reasons of Clause (i) of Section 104(1) forms a part of that section, provides for appeals against orders passed under various rules referred to in Clauses (a) to (w) thereof. Finally, Section 105(1) of the Code lays down that save as otherwise expressly provided, no appeal shall lie from any order made by a Court in exercise of its original or appellate jurisdiction.

These provisions show that under the Civil Procedure Code, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule 1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal. It must follow that First Appeal No. 72 of 1959 filed by defendants 2 and 3 was not maintainable as it was directed against a mere finding recorded by the trial Court."

14. In "Gangappa Gurupadappa Gudwag v. Rachawwa & Others"

AIR 1971 (SC) 442, it has been held by Hon'ble Supreme Court that if final

decision in any matter at issue between the same parties is based by a Court on

its decision on more than one point, each of which by itself would be sufficient

for ultimate decision, the decision on each of these points operates as res

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judicata between the parties.

15. In "Banarsi and Ors. v. Ram Phal" 2003 AIR (SC) 1989, it has

been held that a party in whose favour decree stands in its entirety is neither

entitled nor obliged to prefer any cross-objection, though certain findings may

be against him.

16. Taking similar view, Hon'ble Supreme Court held in "State of

Andhra Pradesh v. B. Ranga Reddy" 2019 (4) R.C.R. (Civil) 131 that it is not

necessary for defendant to file cross-objection against adverse finding on any

issue against defendant in a dismissed suit.

17. Adverting to the present case, the suit of plaintiff Niranjan for

seeking permanent injunction, in which defendant had set up his plea of

adverse possession, was dismissed on 15.04.1983. It is true that while

dismissing the suit, the trial Court had upheld the plea of the defendant to have

become owner of the suit property by way of adverse possession and the said

plea was upset in the Appellate Court but even the Appellate Court dismissed

the appeal of the plaintiff Niranjan on 18.09.1985. Thus, ultimately, the suit as

well as appeal of the plaintiff Niranjan having been dismissed, it was not

required for the defendant Beeru Ram to challenge the finding of the Appellate

Court to the effect that he had not became owner of the suit property by way of

adverse possession.

18. Ld. Counsel for appellant has referred to "Badri Narayan Singh

v. Kamdeo Prasad Singh & anr." AIR 1962 (SC) 338, in which an election

petition was filed by C alleging A to be guilt of corrupt practices, holding

office of profit and declaring C to be duly elected. The Tribunal set aside

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election to A holding him guilty of corrupt practices only but not declaring C as

elected. Separate appeals were filed by A & C to the High Court. The High

Court dismissed the appeal of A on different ground of holding office of profit

and declared C as elected. A filed appeal before Supreme Court against the

order passed in appeal by C but not one filed by himself. It was held by

Hon'ble Supreme Court that the question as to setting aside of election of A for

holding office of profit becoming final finding not been challenged, the

principle of res judicata will be operative as to that order.

As will be evident, the two appeals before the High Court had

arisen out of the same election petition. Those two appeals were not filed

against two separate suits and as such, the facts being distinguishable, the cited

authority is not applicable to this case.

19. Proceeding further as noticed earlier that in civil No.110 of 1983

as was filed by defendant Beeru Ram, a decree was specifically passed on

19.10.1983 in favour of said defendant Beeru Ram to have become owner of

suit property by way of adverse possession. As noticed by the Appellate Court

in that suit, following relevant issues had been framed:

"1. Whether the plaintiff is owner in possession of the suit property? OPP

2. Whether plaintiff has become owner of the suit property by adverse possession? OPP"

It is clarified that plaintiff in the abovesaid suit No.110 of 1983 was Beeru

Ram i.e. defendant of the present case. That suit was between the same parties

regarding the same subject-matter. The suit was decreed on 19.10.1983 and

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concededly, no appeal against that judgment and decree dated 19.10.1983 had

been filed.

20. Similar were the facts in "Lonankutty v. Thomman and another"

AIR 1976 Supreme Court 1645, wherein it has been held by Hon'ble Supreme

Court as under:

"By section 11, Code of Civil Procedure, in so far as relevant, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided. Explanation I to the section provides that the expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. The only other as- pect of the rule of res judicata which on the facts before us must be borne in mind is that it is not enough to constitute a matter res judicata that it was in issue in the former suit. It is further necessary that it must have been in issue directly and substantially. And a matter cannot be said to have been "directly and substan- tially" in issue in a suit unless it was alleged by one party and denied or admitted, either expressly or by necessary implication, by the other."

In the aforesaid case before Hon'ble Supreme Court also, two separate suits

had been filed in respect of the same subject-matter and the decision of the trial

Court was challenged by both the parties before the Appellate Court, which

confirmed the finding of the trial Court. One of the parties however appealed

against one of the judgment but the other judgment was not appealed against

and it thus became final. On these facts, Hon'ble Supreme Court held that

decision given by the District Court in the suit, which had become final, was a

decision in the former suit within the meaning of Section 11 Explanation 1 and

therefore, the High Court was barred by res judicata to hear and decide the

same issue.

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