S7 1 1 SANo 1996 1 In the HighCourt of Punjab and Haryanaat Chandigarh SA No1132 of 1996 Dateof decision 3 e 1242009 Bhawani Sahai ppellant r Versus 0 C I C5 Musadi Lal and others I ee2espondents Z CORAM HONBLE MRS JUSTICE SABINA I Present MtO GoyaI Sr Advocate with Ms AnjanaAdvocate a5 for the appellant AS KMittal Advocate m for the respondents Z k 7k11 SABINA J Plaintiff Bhawani Sahai filed a suit for declaration which was dismissed bythe Sub Judge Ist Class Narnaul vide judgmetlt and decree dated 24 71993 In appeal the said judgmentand decree were upheldby the Additional District Judge Narnaul vide and decree dated 251996 Hence the presentaippeal 44 Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document r 462 RSANol 132 of 2 Brief facts of the case as noticed by the Iower appellate Court in para Nos 2 and 30f itsjudgmentareasundec 2 The case of the plaintiff is that he is in possession of the propertyin dispute situated on the Rewari road Narnaul bounded to the east bythe shopof ChampaDevi to the west by the iand of Municipal r Committee to the north by the Rewari road and to the 0 0 south by the Iand of the MunicipalCommittee where he has constructed a tineshed and is runninga hotel and a 0 I tea shopSince 8 1979 It is also the case of the plaintiff Z that electric connection to the aforesaid shop was obtained in the year 1979 and water connection was also C taken in the same year It is further the case of the 08 plaintiffthat the aforesaid propertywas on the Bazari with 01 him from 1 1979 to the year 1981 and that in the month emn of January 1982 was taken on Iease by him from the Z Municipal Committee Narnaul Two suits beanng tl Nos2 of 1982 and 533 of 1982 were filed by Musadi LaI defendant Nol against the MunicipalCommittee Nalrnaul In the said suits the plaintiff was also impleadedas a defendant but Iater on he was givenup by the paintiff The plaintifffiled an applicationunder Order 1 rule 10 CPC for beingimpleadedas partyin those two suits which was also dismissed The said suits were Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 463 01 RNo1132 of 3 consolidated and decided by means of judgmentdated 18 101 986 Both the suits were decreed againstthe MunicipalCommittee NarnauI and MunicipalCommittee was restrainedfrom interferinginto the possessionof the plaintiffover the agriculturalIand measuring6 biswas comprisingkhewat No139 Khatoni No 1224 Khasra r No06312033 as mentioned in the jamabandifor the year 0 0 1979430 The MunicipalCommittee was also directed to I remove any obstruction which it had caused in the C5 passagebygettingplacedkhokha or tineshed of Bhawani Sahai plaintiffin this casel or anybodyelse In execution Z of the aforesaid judgmentand decree dated 181 986 passedin the above two suits the tin shed of the plaintiH I a5 IS soughtto be removed by defendant No l In the suit broughtby the plaintiffout of which this appeal has ansen the plaintiffhas prayedfor the grant of a decree Z for declaration that the judgment and decree dated Qw 18 10 1986 passed ln the above two suits are null and void and that in execution of the same possessioncannot be taken of the propertyirl dispute belonging to the plaintiff He has also prayed for restrainingthe defendants from interfering in his possession over the propertyin disputeon the basis of aforesaid judgment and decree dated 18 10 1996 J Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 464 1 7 RNo 1132 of 4 3 In the written statement filed by defendant Musadi Lal he has controverted the material averments of the plaintiffand has pleaded inter alia that the propeny Ill disputewas never owned by the MunicipalCommittee and that its owner was the Provincial Governmenf He has also pleaded that he IS in possession of iand 1 C measuring 6 biswas comprisingkhasra No06312033 0 0 and that in the year 1982 the plaintiffhad tried to cause I obstruction in the passage to that Iand on the groundthat C5 he had taken that Iand on Iease from the Muncipal Committee and that he had filed a civil suit which was Z decreed bythe Sub Judge1Class Narnaul In the wtten C statement filed by the MunicipalCommittee defendant 08 No 2 it was pleadedthat a piece of land 10 x 15 was oo givento the plaintiffon the Bazari the possessionof wm which was taken by him on 1731982 and that he had taken the site in disputemeasuring30 x 10 on 28 1982 tl on the basis of a rent note It was also stated that the site Ill disputewas a part of khasra N606312033 which was owned by the Provincial Government and has now vested Ill the Municipal Committee and that Musad Lal defendant has no rightor interest in the same ll On the pleadingsof the parties followi ng issues were framed bythe trial CouIt lJ Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 1 465 RANo1132 of 5 1 Whether the judgmentand decree dated 18 101 986 passed Ill civil suit No 345 Of 71 1 1984 532 of 30 41 982 and civil suit N533 of 1982 are illegal null and void and Iiable to be set aside and not bindingon the rightsof the plaintiff2OPP 2 Whether the plaintiffis entitled 6o the relief of injunctionon the groundmentioned in the plaint7OPP 0 3 VVhether the plaintiffhas no Iocus standi to file C43 I the present suit2 OPD 9 14 VVhetherthe suit Is not malntainable2OPD 5 VVhetherthe suit is barred by the principleof Z resudicata2 OPD 6 Whether the suit is barred by Section 47 I CPC2 OPD 08 7 VVhether the defendants are entitled to m specialcosts under Section 3541 CPC7 0PD Z 8 Relief an The substantial question of Iaw that arises in this case tt whether the Courts below have IS the material evidence on record7 After hearingIearned counsel for the partiesand going throughthe record of the appeal am of the opinionthat the present appealdeserves to be allowed The appellantolaintifffiled a suit seekinga decIaration 4 Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 466 1 1 RANo1132of 6 that the judgmentand decree dated 181 986 were not bindingon him Both the Courts below have dismissed the suit of the plaintiHby ignoringImisreading the material evidence on recorc Musadi Lal defendant No 1 had filed a suit against the MunicipalCommittee Dev Raj and Bhawani Sahai oresent plaintiffl a No345 of 34 1982171 1 1984 In the said suit Bhawani Sahai was m givenup as unnecessary on the statement made by the counsel for 0 1 he C Musadi Lal vide order dated 5 1985 said order reads as I under C5 11 One DW recorded Evidence of defendant Z Nol closed Learned counsel for the plaintiHhas made a m statement wherebyhe has givenup defendant No 3 as lr S unnecessary However Sh3anwari Lal Advocate has I 08 opposedto it As Iearned cou nsel for the plaintiHhas givenup defendant No 3 as unnecessary his name be 7 struck of from the array of the defendantsase to Z come upon27 1985 for rebuttal evidence ofthe plaintiffif any and arguments Long date given due to heavy pendencyof old work and summer vacations Il Thereafter Bhawani Sahai moved an applicationthat he had been wronglygivenup as unnecessary after the entire evidence of the partieshad been recorded The applicationmoved by Blwvani Sahai under Order 1 Rule 10 of the Code of Civil Procedure was dismissed vide order dated 8 1986 which reads as underl Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 1 467 fl RAN01132 of 1996 7 tl Bhani Sahaiewas defendant No 3 but on 5 1985 he was given up as unnecessaryby the plaintiffEntire evidence of plaintiffand defendant has been recorded Thereafter on 121 985 Bhani Sahai moved one under Order 1 Rule 10 CPC for himself as a defendant on the groundthat he 1 r is a Iease holder on the suit propertyunder municipality 0 Narnaulwhich is defendant Nol That applicationhas C3 I been opposedbythe plaintiff C5 10 2 have heard the Iearned counsel for the Z parties 3 VVhen Bhani Sahai is not at all a party no 0 reliefcan be givenagainsthim and in this way he is not at all to be affected Moreover I do not think that he is a5 a necessary partyfor decision of the presentsuit me because he claims himself to be a Iease holder on the Z e suit propertyunder the municipalityNarnaul The Narnaul under whom applicantclaims himself to be a Iease holder alreadya pay4s such the of Bhani Sahai is rejectecl The case now to come upon 1291 986 for rebuttal evidence of plaintiffif any and for final arguments At this stage one for additional evidence has been moved by SI H Mehta Advocate To come upon the date 1 Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 468 SNo1132of 8 fixed for replyand arguments 3l Vide the impugnedjudgment and decree dated 18 101 986 the suit of Musadi Lal was decreed and the Municipal Committee was restrained from interferingin the possession of Musadi Lal and also from obstructing the passage to the disputed Iand The MunicipalCommittee was also directed to remove any r obstruction which it had caused in the passage by gettingplaced 0 khokhsltin sheds of BhawanI Sahai or anybodyelse C I As per the notification ted 17 1950 Ex DW81A the C5 Iand in disputevested in the Municipal Committee Although rnutation on the basis of the notification was admittedlysanctioned Z on 101 01 985 yet it cannot be said that MunicipalCommittee tr became owner of the propertyin disputeonly in the year 1985 I Mutation does not confer any title t simplyrecognises the title of a a5 partyvlunicipal Committee had become owner of the suit Iand by 7 virtue of notification dated 17 1950 and thereafter the Provincial Z Government had no concern with the suit propetty The entries in favour of Musadi Lal in the revenue record qua possession thus do not help the case of defendants as ProvinciaI Government was no Iongerowner of the suit Iand in the year 19794s per the copies of jamabandifor the years 197980 198485 Exe28 and D respectivelyProvincial Government Haryanais described as owner of khasra number in disputeand Musadi Lal is described to be In possession of the suit Iand Althoughpresumptionof truth IS Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 67 469 4 R S AIo 1132 of 9 attached to the entries in the jamabandibut the same llO duly C rebuttedin view of the notiflcation dated 171 980 The entries in the revenue record qua ownershipand possessioncannot be relied uponas these have been incorrectlymade In view of the notification dated 171980 Provincial Government Haryanahad ceased to be the owner of the suit Iand as the Iand stood vested in Municipal 1 Q Committee It was for the MunicipalCommittee to Iease out the Iand 0 to anybdy or not C 1 I Ex1 is a Ietter issued by the MuniciloalCommittee to 0 I the effect that since the plaintiffhad raised construction without the consent of the Committee his Iease was cancelled The said order Z IS dated 51 985 Whether the said order was actuallyacted upon or not is a matter between the MunicipalCommittee and the plaintiff I a5 However Musadi Lal cannot claim any rightin the suit propetty in r the facts and circumstances of the presentcase In the suit filed by 7 Musadi Lal on an applicationfiled by the plaintiff it was specifically Z mentioned that no relief could be givenagainstBhawani Sahai and in this waysince he was not a party he was not to be effected bythe decision Learned AdditionaI District Judge has erred in holdingthat in the order Ex17 it had not been mentioned that the decision of the suit will not be bindlngon the presentplaintiff The facts of this case are peculiar Musadi Lal filed a suit against the Municipal Committee and the presentplaintiff but when the case was almost 1 ripe for argumentshe gave up the presentplaintiffas unnecessary 6 Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document 470 R S A No 1132 of 1996 10 The applicationfiled by the presentplaintiffto be impleadedasa partywas dismissed In these circumstances the decision Ioassedin civil suit No45 dated 304198217 11 1984 decided on 1810 1986 cannot be said to be bindingon the rightsof the plaintiff Hence the Courts below had erred in dismissingthe suit of the piaintiffby the evidence on record Hence the substantial 1 C questionof Iaw that arises in this appealis answered accordingly 0 C Consequentlythis appeal IS allowed The impugned I judgments and decrees passedby the Courts below are set aside 0 and the suit of the plaintiffis decreed to the effect that the decree Z dated 181 0 1986 passed in Civil Suit No 345 dated 30 4 98217 1 1984 is not bindingon the rightsof the plaintiff C I 08 1 JUDGE 7 December 3 2009 Z anita l m S 6 7b C Il 1Ilo Io 1 Batra Amit Sh. Charanjit Batra 2012.05.24 20: 42 True Scanned Copy Of The Original PHHC,Chandigarh JOYTI RANI 2016.03.28 15:59 I attest to the accuracy and integrity of this document