Punjab-Haryana High Court
(O&M) Narain Singh vs Sohan Lal And Others on 18 January, 2025
Neutral Citation No:=2025:PHHC:007190
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
RSA No.1925 of 1990(O&M)
Reserved on : 09.01.2025
Pronounced on: 18.01.2025
Narain Singh (since deceased) through LRs ....Appellant
V/s
Sohan Lal (since deceased) through LRs and another....Respondents
CORAM: HON'BLE MR. JUSTICE VIKRAM AGGARWAL
Present: Mr. Paramveer Singh, Advocate, for the appellant.
Mr. Bharat Bhushan Sharma, Advocate, for respondent No.1.
Mr. Deepak Vashisth, Advocate, for respondent No.2.
*****
VIKRAM AGGARWAL, J.
1. Defendant No.1-Appellant (Narain Singh) assails the judgment
and decree dated 17.05.1990 passed by the Court of learned Addl. District
Judge, Faridabad, dismissing the appeal preferred against the judgment and
decree dated 11.08.1989 passed by the Court of learned Addl. Senior Sub-
Judge, Faridabad, vide which the suit for permanent injunction filed by
respondent No.1-plaintiff (Sohan Lal), was decreed.
2. For the sake of convenience and clarity, parties shall be referred
to as per their original status.
3. Plaintiff-Sohan Lal filed a suit for permanent injunction
restraining defendant No.1-Narain Singh from interfering in the peaceful
possession of the plaintiff over agricultural land measuring 7 kanals 11
marlas (fully described in the plaint), situated within the revenue estate of
Village Mawai, Tehsil Ballabgarh, District Faridabad (hereinafter to be
referred to as the "suit land"). It was claimed by the plaintiff that he along
with defendant No.2-Mohan Lal (proforma defendant), who are real brothers
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were in cultivating possession under Shamilat Deh, being co-sharers of the
suit land. Reliance was placed upon entries in the Jamabandis for the years
1976-77, 1971-72, 1966-67, 1961-62 and 1954-55. It was averred that
defendant No.1 had no right, title or interest in the suit land. Despite having
been requested, he did not admit the claim of the plaintiff and was bent upon
interfering in his peaceful possession, as a result of which the suit was filed.
4. Defendant No.1 opposed the suit. In the written statement,
certain preliminary objections with regard to locus standi, the plaintiff not
being in possession of the suit property, the suit having been filed in
collusion with proforma defendant No.2, cause of action, estoppel, the suit
being bad for non-joinder and mis-joinder of parties etc. were raised. It was
also averred that the suit was barred by res judicata, since the suit in
question had been decided by the District Revenue Officer vide judgment
dated 27.02.1987 as regards the land comprised in Rectangle No.14, Killa
No.12/1(3K-2M) on an application for correction of Khasra Girdawari
having been moved by defendant No.1. It had been held vide order dated
27.02.1987 that the land measuring 3 kanals 2 marlas (a part of the suit
land) was actually in cultivating possession of defendant No.1 and,
therefore, ordered for correction of Khasra Girdawari. On merits also, the
same stand was taken.
5. Replication was filed, in which the contents of the written
statement were denied and those made in the plaint were reiterated.
6. From the pleadings of the parties, following issues were framed
by the trial Court:-
"1. Whether the plaintiff and defendant No.2 are in cultivating
possession of the land as co-sharers?
2. Whether the suit is not maintainable?
3. Whether the plaintiff has no locus-standi to file the present suit?
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4. Whether the plaintiff has no cause of action to file the present
suit?
5. Whether the suit is barred by the principle of respondent
judicata?
6. Whether the suit is collusive, as alleged?
7. Whether the plaintiff is stopped from filing the present suit by his
own act and conduct?
8. Whether the suit is bad for non-joinder and misjoinder of
parties?
9. Relief."
7. Parties led their respective evidence. The trial Court decreed the
suit filed by the plaintiff and the appeal preferred against the said judgment
and decree was dismissed by the first appellate Court leading to the filing of
the present second appeal.
8. Learned counsel for the parties were heard.
9. It was submitted by learned counsel representing defendant
No.1 that both the Courts below had erred in decreeing the suit filed by the
plaintiff. Reference was made to the order dated 27.02.1987 (Ex.D1) passed
by the District Revenue Officer, vide which it had been held that the
possession over land measuring 3 kanals 2 marlas was that of defendant
No.1. Reference was also made to the revenue record produced by the
plaintiff and it was submitted that the plaintiff had to show that he was in
possession of the suit land on the date of the filing of the suit, which the
documents produced by the plaintiff did not show.
10. Learned counsel further submitted that the Courts below had
lightly brushed aside the order dated 27.02.1987 (Ex.D1) and had
erroneously held that the said decision would not operate as res judicata.
Learned counsel referred to the entire oral and documentary evidence led on
the record of the case and submitted that the judgments of the Courts below
are not sustainable.
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11. It was also submitted that both the Courts below had
erroneously held that against the order dated 27.02.1987 (Ex.D1), an appeal
had been preferred, whereas no such appeal had been preferred and,
therefore, the order had become final. It was lastly submitted that even
otherwise the jurisdiction of the Civil Court was barred in terms of the
provisions of Section 13 of the Punjab Village Common Lands
(Regulations) Act, 1961 (for short the "1961 Act"). In support of his
contentions reliance was placed on:-
1. Sarjeet Singh (D) Th. LRs vs. Hari Singh and others,
(2015) 1 SCC 760;
2. Ram Singh vs. Gram Panchayat, Mehal Kalan, 1987(1)
PLR 224;
3. Parminder Singh and others vs. State of Punjab and
others, 2017(2) LAR 1;
4. Gram Panchayat Hansawas Khurd vs. Dhan Singh and
others, 2022(3) RCR (Civil) 436;
5. Rekah Singh vs. Babu Singh and others, 1985 PLJ 266;
6. Balkrishna Dattatraya Galande vs. Balkrishna
Rambharose Gupta and another, (2020)19 SCC 119;
7. Gurbachan Singh vs. Gram Panchayat of Mansuha
Kalan and others, 1990(1) PLR 226;
8. Sulochana Amma vs. Narayanan Nair (1994)2 SCC 14
and
9. Puthen Veettil Nolliyodan Devoki Amma and others vs.
Puthen Vettil Nolliyodan Devoki Amma and others, 1980 AIR
Kerala 230.
12. On the other hand, learned counsel representing the
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respondents, submitted that there is no illegality in the judgments and
decrees passed by the Courts below and that they were in fact passed after
considering the factual and legal position. It was submitted that the
possession of the plaintiff over the suit land was duly established from the
revenue record. Learned counsel submitted that the order dated 27.02.1987
(Ex.D1) was passed without following any procedure and without any
evidence having been led and, therefore, the same cannot be said to be a
conclusive determination of the rights of the parties, which could have
barred the suit on account of res judicata.
13. It was contended that the order, in any case, had not been
become final, as an appeal had been preferred against the said order though
nothing could be brought on record about the same. Learned counsel
submitted that both the Courts below had examined the matter in extenso
and had correctly injuncted the defendant from interfering in the peaceful of
the plaintiff over the suit land.
14. I have considered the submissions made by learned counsel for
the parties and have perused the record which was duly summoned.
15. To prove his possession, the plaintiff produced on record
Jamabandis (Ex.P1 to P5) from the years 1954-55 onwards which depicted
that previously the father of the plaintiff and defendant No.2 namely Ramji
Lal had been cultivating the suit land and after him, the plaintiff and
defendant No.2 were in cultivating possession continuously, without
interruption, as co-sharers in the Shamilat Deh. Even the Khasra
Girdawaris were produced by the defendants in their evidence from Khariff
1982 till Rabi 1987, which also showed the possession of the plaintiff and
defendant No.2. The argument that the plaintiff should have showed his
possession as on the date of filing of the suit, is devoid of merit, for there is
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no document to the contrary produced by defendant No.1 and in any case it
was defendant No.1 himself who moved an application for correction of
Khasra Girdawari. There is, therefore, no dispute that the plaintiff and
defendant No.2 were in cultivating possession of the suit land.
16. Reliance by defendant No.1 upon the order dated 27.02.1987
(Ex.D1) passed by the District Revenue Officer is misfounded. A bare
perusal of the order shows that the District Revenue Officer adopted a
procedure unknown to law and arrived at a conclusion that defendant No.1
was in possession of the suit land. Before reverting to the said order, a
reference to the order dated 24.09.1984 (Ex.D2) passed by the Assistant
Collector 2nd Grade, vide which the application filed by defendant No.1 for
correction of Khasra Girdawari was rejected, needs to be referred to. It
was noticed by the said authority that the applicant could not pinpoint the
land in his possession at the spot at the time of spot inspection, nor could he
produce any documentary evidence in the shape of Jamabandis or Khasra
Girdawaris to prove his possession. It was noticed that the documents
(Exs.P1 and P2) which had been produced by him in fact showed the
cultivating possession of the plaintiff and defendant No.2. It was further
noticed that the witnesses which had been produced by defendant No.1 were
neither the Lambardar nor the Sarpanch or Panch of the village and that the
entries in the Girdawari could not be corrected on oral statements. This
order was set aside by the District Revenue Officer stating that he had
carried out a spot inspection on 22.12.1986, where the plaintiff told him that
he had sown the crop of masoor and mustard. He also noticed that the
plaintiff and defendant No.1 claimed that the land was in their cultivating
possession but could not swear about the same in front of the co-villagers.
It was quite strange that the DRO asked the plaintiff to swear about his
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possession rather than looking at the documentary evidence. He stated that
the cultivators of the neighbouring land had also stated that the land was in
possession of defendant No.1. He went on to state that the file also showed
that the possession of defendant No.1 was there for quite some time. How
and on the basis of which documents, he arrived at such a conclusion is not
mentioned. It is not understood as to how possession of agricultural land
could have been determined by way of spot inspection. This Court,
therefore, has no hesitation in holding that the order dated 27.02.1987
(Ex.D1) does not inspire any confidence and in fact, cannot, in any manner,
be stated to have finally and conclusively determined the rights of the
parties.
17. No doubt, despite having stated that an appeal had been
preferred against the said order, no record to either prove or disapprove the
same was produced. In any case, even if it is presumed that no appeal was
filed, in the considered opinion of this Court, the order dated 27.02.1987
(Ex.D1) would not bar the suit filed by the plaintiff by the principle of res
judicata. Section 11 of the Code of Civil Procedure, 1908 (for short the
"CPC") defines res judicata:
"Section 11 Res judicata-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, or
between parties under whom they or any of them claim, litigating under
the same title, in a Court competent to try such subsequent suit or the
suit in which such issue has been subsequently raised, and has been
heard and finally decided by such Court.
Explanation I.-- The expression former suit shall denote a suit
which has been decided prior to a suit in question whether or not it was
instituted prior thereto.
Explanation II.-- For the purposes of this section, the
competence of a Court shall be determined irrespective of any provisions
as to a right of appeal from the decision of such Court.
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Explanation III.--The matter above referred to must in the
former suit have been alleged by one party and either denied or admitted,
expressly or impliedly, by the other.
Explanation IV.-- Any matter which might and ought to have
been made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in such
suit.
Explanation V.-- Any relief claimed in the plaint, which is not
expressly granted by the decree, shall for the purposes of this section, be
deemed to have been refused.
Explanation VI.-- Where persons litigate bona fide in respect of a
public right or of a private right claimed in common for themselves and
others, all persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating .
[Explanation VII.-- The provisions of this section shall apply to a
proceeding for the execution of a decree and references in this section to
any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree, question
arising in such proceeding and a former proceeding for the execution of
that decree.
Explanation VIII.-- An issue heard and finally decided by a
Court of limited jurisdiction, competent to decide such issue, shall
operate as res judicata in a subsequent suit, notwithstanding that such
Court of limited jurisdiction was not competent to try such subsequent
suit or the suit in which such issue has been subsequently raised.]"
The definition itself would show that the suit would not be
barred by res judicata, for the issue before the revenue authorities was of
correction of Khasra Girdawari and the issue before the Civil Courts was of
permanent injunction. It cannot, therefore, be said that the matter directly
and substantially in issue before the Civil Courts was also directly and
substantially in issue in the previous proceedings. Further, the revenue
Court was not competent to try a suit for injunction and the Civil Court was
not competent to order correction of Khasra Girdawari.
18. I have gone through the judgments relied upon by learned
counsel for the appellant. The judgment in the case of Sarjeet Singh (supra)
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deals with the provisions of Section 13 of the 1961 Act, wherein it was held
that the Civil Court did not have the jurisdiction as regards issues of
possession and title. There is no dispute in the law laid down in that
judgment, but the same would not come to the aid of the appellant because
the suit filed by the plaintiff was a suit for injunction which, as per settled
law is maintainable. Still further, it was not a dispute with the Gram
Panchayat and was a dispute between private individuals. For the same
reasons, the judgment in the case of Ram Singh (supra) also would not be
applicable. Similarly, the judgment in the case of Gurbachan Singh
(supra) would also not be applicable to the present case. The judgment of a
Division Bench of this Court in the case of Parminder Singh (supra) is also
on the subject of title and ownership. In the case of Gram Panchayat
Hansawas Khurd (supra), a coordinate Bench of this Court held that the
Collector had all incidental powers to decide a suit for grant of injunction.
In this case, an application for rejection of plaint had been dismissed by the
trial Court but the revision petition was allowed by a coordinate Bench and
the suit was dismissed. Notably, the suit in that case was a suit for title under
Section 13A of the 1961 Act. Therefore, this judgment would also not come
to the aid of the appellant because in that case a title suit was pending before
the Collector and during its pendency a suit for injunction was filed. It was
held by the coordinate Bench that the civil suit involved adjudication of
rights of the parties over the suit property as a result of which it would be
barred under Section 13 of the 1961 Act. In the present case, there is no
question of title and it was only the question of alleged interference in the
possession of the plaintiff by defendant No.1 and, therefore, the suit would
not be barred.
In the case of Rakha Singh (supra) also a question of title was
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involved as a result of which it was held that the Civil Court did not have
jurisdiction and, therefore, the said judgment would also not be applicable.
In the case of Balkrishna Dattatraya Galande (supra), there was a suit
under the Specific Relief Act seeking permanent injunction. It was held that
unless the plaintiff proved that he was in actual possession of the suit
property on the date of filing of the suit, the injunction could not be granted.
This was proved on record before the Courts below in that case. In the
present case, the revenue record produced by the plaintiff showed the
possession of the father of the plaintiff and thereafter, of the plaintiff for a
number of years. Even the Khasra Girdwawaris produced by defendant
No.1 showed the cultivating possession with the plaintiff and defendant
No.2. Nothing contrary to the said record was produced and it was nobody's
case that the plaintiff was not in possession of the suit land. Under the
circumstances, the said judgment would also not come to the aid of the
appellant. The judgment in the case of Sulochana Amma (supra) deals with
res judicata. In view of the discussion on the point of res judicata, this
judgment would also not apply to the present case, though there can never be
any dispute as regards the ratio of law laid down in the said judgment. For
the same reasons, the judgment in the case of PVN Devoki Amma (supra)
would not apply.
19. The cumulative result of the discussion in the preceding
paragraphs leads this Court to the conclusion that the present appeal is
devoid of merit and the same is accordingly dismissed.
(VIKRAM AGGARWAL)
JUDGE
Reserved on: 09.01.2025
Pronounced on: 18.01.2025
vcgarg Whether speaking/reasoned: Yes/No
Whether reportable: Yes/No
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