R.S.A. No. 4217 of 2009 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 4217 of 2009 Date of Decision :5.04.2010 Pritam Chand ... Appellant Versus Brij Mohan & Ors. .. Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Pritam Saini, Advocate for the appellant. --- VINOD K. SHARMA, J. This is plaintiff's regular second appeal against the judgment and decree dated 27.8.2009, passed by the learned Addl. District Judge, Ambala, vide which suit filed by the plaintiff for declaration, that the plaintiff and defendants No. 2 & 3 are the joint owners in possession to the extent of ½ share in the suit land, with a consequential relief of separate possession by way of partition, stands dismissed. The plaintiff filed a suit on the pleadings, that the plaintiff and defendants No. 2 & 3 were closely related to each other, being off springs from a common ancestor namely Chhitru Ram, who was the owner of the disputed bara, along with other agricultural land measuring 19K-3 M, R.S.A. No. 4217 of 2009 -2- situated at village Mullana, Tehsil and District Ambala. It was the pleaded case of the plaintiff / appellant, that Chhitru Ram had two sons namely Sadhu Ram, (father of the plaintiff and defendants No.2 & 3) and second namely Surja Ram, (father of defendant No.1). Sadhu Ram and Surja Ram inherited, the suit property from their father Chhitru Ram in equal shares, but due to family exigency the entire property was got mutated in favour of defendant No.1 on 21.9.1961, but Sadhu Ram and Surja Ram remained in possession of the suit property. In order to avoid the anomaly and confusion created by mutation No. 2377, in the year 1988, a civil suit was filed by the plaintiff and defendants No. 2 & 3 against defendant No.1, claiming half share in the family property. The said suit was decreed, in view of the admission made by defendant No.1, vide judgment and decree dated 20.5.1988, and mutation was accordingly sanctioned on the basis of the said decree. It is pertinent to mention here, that though the property in dispute was also claimed to be the property inherited from Chhitru Ram, in which the plaintiff claimed share, but the same was not included in the suit earlier filed. The present suit, therefore, was prima facie barred under Order 2 Rule 2 of the Code of Civil Procedure. In the suit it was pleaded, that due to unintentional mistake and inadvertent slip, the Bara in dispute was not included in the suit land, in the previous suit, and the said property remained in the name of defendant No.1, though, half share was owned by the plaintiff along with defendants R.S.A. No. 4217 of 2009 -3- No.2 & 3 in the family property. It was the case of the plaintiff, that after discharge from the Army he showed his intention to partition the land, but defendants No.2 & 3 refused to accept his plea, therefore, he filed another suit claiming 1/3rd share in the suit property. The said suit was filed against his brothers. The suit was dismissed, on the ground, that defendant No.1, who was recorded as owner of the property was not made a party in the suit. The appeal also failed. Thereafter the present suit was filed. The suit was contested. It was asserted by defendant No.1, that the suit property was inherited by defendant No.1 from Chhitru Ram by way of Will, but nobody challenged the said Will, or the mutation sanctioned in the year 1961. The ½ share of the agricultural land was given to plaintiff and defendants No.2 & 3 in the previous suit. It was also the case of defendant No.1, that while the plaintiff was away in Army, defendant No.1 had permitted defendants No.2 & 3 to raise residential construction in the back portion of defendant No.1. Subsequently, some shops were also constructed, but their ownership was not accepted. The learned trial Court decreed the suit, but the learned lower appellate Court accepted the appeal by recording, that in the previous suit the property in dispute was not included, and thereafter a suit for possession filed by the plaintiff against defendants No.2 & 3 was also dismissed, as the plaintiff was neither found to be the owner, nor in possession of the suit property. R.S.A. No. 4217 of 2009 -4- The appeal against the said judgment had also failed. The learned lower appellate Court also found, that no objection regarding non- inclusion of the property, in the previous suit was taken in the partition proceedings before the A.C. IInd Grade. The learned lower appellate Court further held, that the plaintiff had failed to prove, that the suit property was ancestral property. The mutation in favour of defendant No.1 was also not challenged, therefore, it was not open to the plaintiff now to claim interest or title in the suit property, as defendant No.1 was the absolute owner of the property. The learned lower appellate Court further held, that the suit was barred by res judicata. The findings recorded in this regard read as under :- “16. Further, it is observed that civil suit no. 751 of 12.8.1997 for possession by way of partition of suit property was filed by plaintiff Pritam Chand against Jagdish Chand and Jaswant Singh and the said suit was dismissed by learned Civil Judge (JD), Ambala vide judgment and decree dated 18.1.2000 as the plaintiff was found neither owner nor in possession over the disputed property. The appeal preferred by the plaintiff against the judgment and decree dated 18.1.2000 was also dismissed by learned Addl. District Judge, Ambala vide judgment and decree dated 24.1.2002. The case of the plaintiff is t hat the said suit was dismissed on technical grounds. This contention is not acceptable as the plaintiff had claimed possession by way of partition and he was neither held to be owner nor in possession by way of partition and he was R.S.A. No. 4217 of 2009 -5- neither held to be owner nor in possession of suit property. 17. In Oriental Electricals Insulatiuon (P) Ltd. vs. Faridabad Complex Administration and another. 1996(2) Civil Court Cases 509 (supra) there were two suits between the same parties. The matter in dispute in both the suits was substantially the same. The previous suit was heard and decided by the Court. It was held by our Hon'ble High Court that 'previous suit operates as res judicata.” In Swamy Atmananda & others v. Sri Ramakrishna Tapovanam and others, 200 RCR 404 (supra) it has been held by Hon'ble Supreme Court that 'scope and object of res-judicata is to up-hold the rule of conclusiveness of judgment as to the points decided earlier of fact, or law, or of fact and law, in every subsequent suit between the same parties. Once the matter which was the subject- matter of lis stood determined by a competent court, no party thereafter can be permitted to reopen it in a subsequent litigation.” 18. In the present case, plaintiff Pritam Chand had filed a suit for possession by way of partition of suit property and defendant no.2 Jagdish Chand and defendant no.3 Jaswant Singh were parties to that suit. That suit was dismissed as the plaintiff was neither found to be owner nor in possession of the suit property and he also failed to prove that the construction was raised with his money. The appeal preferred against the said R.S.A. No. 4217 of 2009 -6- judgment was dismissed by learned Addl. District Judge. Thus, the suit filed by the plaintiff for partition was not dismissed on technical ground, but the same was dismissed on merits. The matter of both the suits is substantially the same, though Brij Mohan was not a party to that suit, but the plaintiff and other defendants were party to that suit. In these circumstances, I am of the view that the present suit is also hit by the principle of res judicata and the suit is not maintainable. The proposition of law laid down in the authorities cited by learned counsel for the respondent / plaintiff is not disputed but the same is not applicable to the present case, as facts of present case are distinguishable. Accordingly, it is held that the plaintiff has failed to prove that the plaintiff alongwith defendants no. 2 and 3 are joint owners to the extent of ½ share in the suit property and that he is entitled to the relief of declaration as prayed for and that he is entitled for possession of suit property. Rather defendant no.1/ appellant Brij Mohan is absolute owner of suit property. Consequently, the findings recorded by learned Civil Judge ( Sr. Div.), Ambala on issues no. 1, 2, 3 and 4 are reversed, the findings on remaining issues are affirmed.” Mr. Pritam Saini, learned counsel appearing on behalf of the appellant contended, that the following substantial questions of law, arise for consideration in this case :- R.S.A. No. 4217 of 2009 -7- 1. Whether the plaintiff can be denied share in the joint property owned by the respondents to the extent of his share when in the earlier litigation it has been found that the plaintiff and defendants No. 2 & 3 are joint owners in possession to the extent of half share and defendant No.1 is owner to the extent of half share in that very property? 2. Whether a right which has accrued to the defendants No.2 and 3 can be denied to the plaintiff being real brother when the right of defendants No. 2 & 3 has been admitted by defendant No.1 qua the share in the suit property measuring 8 Kanals 8 Marlas ? 3. Whether the principles of res-judicata can be made applicable when no relief was sought against defendant No.1 in the previous litigation? 4. Whether the principle of res judicata can be made applicable against a person who even was not a party in the earlier suit? 5. Whether the principle of res judicata can be said to be made applicable where earlier litigation was not between the same parties and relief was also not the same, which has been claimed in the subsequent suit? 6. Whether the plaintiff can be denied the same in the property on the basis of a mutation sanctioned in favour R.S.A. No. 4217 of 2009 -8- of defendant No.1 when the said mutation was already been found to be defective and the property was accepted to be ancestral with the parties herein also? In support of the substantial questions of law, the learned counsel for the appellant vehemently contended, that the learned lower appellate Court committed an error in denying share in the joint property owned by the plaintiff and respondents, as defendant No.1 was only owner to the extent of half share in that property. This contention of the learned counsel for the appellant is misconceived. It is not in dispute, that defendant No.1 was recorded as owner of the suit property, and in the previous suit the decree was passed on the basis of compromise. The property in dispute was not included, though, it was shown to be in the ownership of defendant No.1. Therefore, it cannot be said that the plaintiff was having share in the suit property, as contended by the learned counsel for the appellant. The learned lower appellate Court has rightly held, that the plaintiff had failed to lead any evidence to prove the ancestral nature of the property. The suit was otherwise barred under Order 2 Rule 2 of the Code of Civil Procedure. It was then contended by the learned counsel for the appellant, that the right which accrued to defendant Nos. 2 & 3, could not be denied to the plaintiff being real brother, when the right of defendants No.2 & 3 was admitted by defendant No.1 qua the share in the suit property. This plea of the learned counsel for the appellant is again misconceived. It is not in R.S.A. No. 4217 of 2009 -9- dispute, that in view of the previous suit the plaintiff had claimed 1/3 share from defendants No.2 & 3. The said suit was dismissed because defendant No.1 was not impleaded as party to the suit, the plaintiff could not claim share from defendants No.2 & 3, who were admittedly not the owners of the property, which was under the ownership of defendant No.1. On the 4th substantial question of law, the learned counsel for the appellant contended, that the matter which is not directly and substantially in issue in the previous suit, cannot be treated to be res judicata in the subsequent suit. The contention of the learned counsel for the appellant was that the previous suit was dismissed and the plaintiffs had failed to prove their ownership, which was shown under the ownership of defendant No.1, who was not impleaded as a party, therefore, the matter was not substantially in issue in the previous suit. In support of this contention the learned counsel for the appellant placed reliance on the judgment of the Hon'ble Supreme Court in the case of Isher Singh Vs. Sarwan Singh and others A.I.R. 1965 (SC) 948. The learned counsel for the appellant also placed reliance on the judgment of the Hon'ble Supreme Court in the case of K. Ethirajan (Dead) by L.Rs. v. Lakshmi and others AIR 2003 Supreme Court 4295 to contend that the principle of res judicata is attracted, where issues directly and substantially involved between same parties in the previous and subsequent suit are the same, even though in the previous suit only part of property was involved whereas in the subsequent suit, whole property was R.S.A. No. 4217 of 2009 -10- involved. Further, in support of this contention that the principle of res judicata was wrongly applied, the learned counsel for the appellant placed reliance on the judgments of the Hon'ble Supreme Court in the cases of Syed Mohd. Salie Labbai (Dead) by L.Rs. and others Vs. Mohd. Hanifa (Dead) by L.Rs. and others AIR 1976 Supreme Court 1569, Isher Singh Vs. Sarwan Singh and others AIR 1965 Supreme Court 948, State of Maharashtra and another Vs. M/s National Construction Company, Bombay and another AIR 1996 Supreme Court 2367(1), Ramchandra Dagdu Sonavane (Dead) by L.Rs. Vs. Vithu Hira Mahat (Dead) by L.Rs. & Ors. 2009(4) Civ. C.C. 704 and the judgment of this Court in the case of Satwant Kaur Vs. State of Punjab 1993(2) P.L.R. 298. On consideration, I find no force in the contentions raised by the learned counsel for the appellant, nor the judgments relied upon by the learned counsel for the appellant have any relevance to the facts of the present case. In the present case, in the previous suit filed by the plaintiff / appellant along with his brothers claiming share in the property, the property in dispute was not included, therefore, in view of the bar contained under Order 2 Rule 2 of the Code of Civil Procedure, the plaintiff had no right to file second suit claiming ownership against defendant No.1. It was for the said reason, that in the second suit an attempt was made to get 1/3rd share from defendants No.2 & 3. The said suit was dismissed for the reason, that the plaintiff had failed to prove his ownership R.S.A. No. 4217 of 2009 -11- or that of defendants No.2 & 3 to claim 1/3rd share. The question whether the plaintiff was entitled to 1/3rd share from defendants No.2 & 3, therefore, was substantially in issue in the previous suit, which was decided against the plaintiff / appellant, therefore, the learned lower appellate Court was right in holding, that the suit filed by the plaintiff was barred by the principle of res judicata. For the reasons stated, the substantial questions of law raised, are answered against the appellant. The regular second appeal is accordingly dismissed in limine. No costs. 5.04.2010 (Vinod K.Sharma) sp Judge