R.S.A.No.2313 of 2008 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.2313 of 2008 (O&M) Date of decision: 15.7. 2009 Tejbir L.R.of Kiyali (now deceased) ......Appellant Versus Rattan Singh and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Namit Sharma,Advocate, for the appellant. **** SABINA, J. Appellant-plaintiff filed a suit for declaration and the same was dismissed by the Civil Judge (Jr.Divn.), Panipat vide judgment and decree dated 4.10.2007. In appeal, the said judgment and decree were upheld by the Additional District Judge, (Fast Track Court), Panipat vide judgment and decree dated 28.1.2008. Hence, the present appeal by the plaintiff. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- “2. Brief facts of the case of plaintiff are that he was a co-sharer in Gair Mumkin land comprised in Khewat No.393 Khatoni no.458 Khasra No.221/2(3-2) R.S.A.No.2313 of 2008 (O&M) 2 situated in the area of village Atta Tehsil Samalkha and the defendants were also co-sharers in the said khasra no. It has been further averred that the plaintiff had 1/12th share in the said property. All the co-sharers except defendant no.1 got constructed their houses over the said khasra after getting their shares separated for the last so many years back. The plaintiff had also got constructed his house over 1/12th share in the said property. It has been averred that defendant no.1 had filed a suit for partition of the said khasra no. in the Court of Shri A.K.Jain, the then ld.Civil Judge (Senior Division), Panipat in which a preliminary decree was passed vide judgment and decree dated 1.8.2001. It is further averred that on 9.4.2003 some employees along with defendant no.1 came at the spot and they illegally demolished some portion of the building and some of the share of plaintiff was snatched by defendant no.1 illegally and forcibly. On enquiry, it was found that on 8.8.2002 defendant no.1 had succeeded in getting a final decree of partition in a case titled as Rattan vs. Dharma. It has been further pleaded that a loss of Rs. 3 lacs was suffered by the plaintiff as defendant no.1 had uprooted the trees of the plaintiff and had destroyed the submersible tubewell of the plaintiff. It has been further pleaded that the final decree passed on R.S.A.No.2313 of 2008 (O&M) 3 8.8.2001 in case titled as Rattan vs. Dharma was illegal, null and void and was liable to be set aside on the grounds that no notice of final decree was issued to the plaintiff and the plaintiff had no knowledge of the pendency of the application for final decree and he came to know about the same only on 10.4.2003. It has been further pleaded that defendant No.1 had wrongly taken the possession of the suit property and defendant no.1 was bound to restore the same to the plaintiff. It was prayed that a decree for declaration to the effect that the final decree dated 8.8.2002 passed in the abovesaid civil suit was null, void, inoperative, obtained by fraud and was liable to be set aside with a consequential relief of permanent injunction restraining defendant no.1 from raising construction over 1/12th share of the plaintiff in the said khasra, be passed. 3. Notice of the suit was given to the defendants. Defendant No.1 filed separate written statement taking preliminary objections regarding maintainability, cause of action, locus standi, estoppel suit being barred by principle of res judicata and limitation etc. On merits, defendant No.1 denied the allegations levelled by the plaintiffs and pleaded that there was no separation or construction in the shape of house. It was pleaded that R.S.A.No.2313 of 2008 (O&M) 4 the construction was temporary (Kacha) over the suit property. It was further pleaded that after passing of the preliminary decree dated 1.8.2001, defendant no.1 had filed an application for passing final decree but the plaintiff and other defendants did not file any objection on the preliminary decree passed by the court and the final decree dated 8.8.2002 was passed. After passing of the final decree dated 8.8.2002 defendant No.1 filed an execution application for execution of the preliminary decree dated 1.8.2001 and final decree dated 8.8.2002. It has been pleaded that on the basis of preliminary decree dated 1.8.2001 and final decree dated 8.8.2002, warrant of possession was issued by the court of Shri B.Diwakar, ld. Addl. Civil Judge (Senior Division), Panipat vide order dated 25.2.2003 and Tehsildar Samalkha was ordered to deliver the possession of the share of defendant no.1 and the possession of the share of defendant No.1 out of the bara in dispute was delivered with the help of police on 8.4.2003. An entry in this regard was made in rapat Rojnamcha Wakayati. Defendant No.1 is now in separate possession of 0 kanal 8 marlas of the land out of the said khasra no. It has been further pleaded that the plaintiff was estopped from challenging the preliminary decree dated 1.8.2001 and R.S.A.No.2313 of 2008 (O&M) 5 final decree dated 8.8.2002 as the plaintiff had been contesting the suit and he had filed the written statement and had engaged the counsel Shri K.R.Sharma, Advocate and had been watching the proceedings of the case since the day of the filing of the suit by defendant no.1. It has been denied that on 9.4.2003 some employees alongwith defendant no.1 had gone to the spot and they illegally demolished some portion of the building of the plaintiff which was raised by him many years back. The share of the plaintiff had not been snatched by the answering defendant illegally and forcibly as alleged. All other averments of the plaint were also controverted and the dismissal of the suit of plaintiffs was prayed for. 4. Defendant No.2 filed separate written statement taking preliminary objections regarding maintainability and cause of action. However, respondent No.2 had admitted the case of plaintiff but pleaded that defendant No.1 filed a suit for partition regarding the suit property against the father of defendant no.2 and no notice of the same was ever issued upon the father of defendant no.2 who had died and defendant No.2 was made party in that partition suit and defendant no.1 got passed the preliminary decree dated 1.8.2001 by playing fraud upon the court as well as upon the answering R.S.A.No.2313 of 2008 (O&M) 6 defendant and on 8.8.2002 defendant no.1 succeeded in getting the final decree of partition and no notice of the application for final decree was issued to defendant no.2. Defendant No.1 on the basis of alleged decree succeeded in demolishing the house of defendant no.2. It was prayed that the suit of the plaintiff be dismissed with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether final decree dated 8.8.2002 passed by Shri A.K.Jain, Civil Judge, Panipat in civil suit itled Rattan vs. Dharma etc. is null and void based on fraud relating to land comprising in Khewat no.380/387 min khatoni no.450 khasra no.221/2(3-2) situated in the area of village Atta, Tehsil Samalkha district Panipat and is liable to be set aside? OPP 2. In case issue No.1 decided in favaour of plaintiff then whether plaintiff is also entitled to injunction as prayed for? OPP 3. Whether the suit filed by the plaintiff is not maintainable in the present form? OPD 4. Whether the plaintiff is neither owner nor in possession of the suit property? OPD 5. Relief. ” R.S.A.No.2313 of 2008 (O&M) 7 After hearing learned counsel for the appellant, I am of the opinion that the present appeal deserves to be dismissed. Tejbir, legal heir of plaintiff Khiyali (since deceased), in order to prove his case, appeared in the witness box as PW-1 and deposed as per the contents of the plaint. It has been noticed by the learned Additional District Judge that the said witness in his cross- examination admitted that his father was aware of the pendency of earlier litigation in which the final decree was passed. He also admitted the knowledge of visit of Local Commissioner at the spot and the fact that he had demarcated the suit property. He also admitted the presence of his father in the proceedings carried on by the Local Commissioner. He also stated that earlier Ram Kumar had challenged the preliminary decree and the final decree and his father was also party in the said proceedings. The said suit filed by Ram Kumar was dismissed. He also admitted that they had the knowledge of application for making preliminary decree final and the execution. In these circumstances, it is evident that Khiyali had the knowledge of the fact that the preliminary decree had been made final and he also had the knowledge of execution petition filed by respondent Rattan Singh but intentionally, he did not appear in the Court to contest the passing of the final decree. Learned Additional District Judge has also observed that Ex.D- 1 was copy of judgment dated 21.5.2007 passed in civil suit No.402 of 2003 and as per the same, Khiyali and respondent No.2 Ram Kumar R.S.A.No.2313 of 2008 (O&M) 8 were party to the said suit. A preliminary decree dated 1.8.2001 and final decree dated 8.8.2002 had been challenged in the said suit but the said suit was dismissed vide judgment dated 21.5.2007 Ex.D-1. In execution of final decree dated 8.8.2002 Ex.P-5, respondent No.1 Rattan Singh had taken possession of his separate undivided 1/8th share in the joint land. A perusal of copy of judgment dated 1.8.2001 passed in civil suit No.24 of 1998, Ex.P-1 filed by Rattan Singh reveals that Khiyali and Pyara had appeared in the said suit. Khiyali was respondent No.2 in the said suit and he had filed his written statement. However, they did not contest the suit thereafter and a preliminary decree was passed. Although no notice of the application moved by Rattan Singh for passing of final decree was issued to Khiyali and other co-sharers but from the cross- examination of Tejbir PW-1, it is evident that despite knowledge of the application moved by Rattan Singh, Khiyali had not contested the same or the execution proceedings. Learned counsel for the appellant has failed to controvert the observations made by the learned Additional District Judge. In these circumstances, the impugned judgments and decrees of the Courts below call for no interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) July 15, 2009 JUDGE anita