IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 452 of 2006. Reserved on: 02.12.2011. Decided on: 19.12.2011. ____________________________________________________ Sh. Rattan Dass, son of Shri Kana Singh, resident of Village Bashla, Tehsil Rohru, District Shimla, H.P. …Plaintiff/Appellant. -Versus- (1) Sh. Moti Lal, son of Sh. Sidhu Ram, resident of Village Bashla, Tehsil Rohru, District Shimla, H.P. (2) Sh. Shamsher Singh, son of Sh. Sidhu Ram, resident of Village Bashla, Tehsil Rohru, District Shimla, H.P. (3) Sh. Jai Lal, son of Shri Ram Singh, resident of village Bashla, Tehsil Rohru, District Shimla, H.P. …Defendants/Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. ___________________________________________________ For the appellant : Mr. Ajay Kumar, Advocate. For respondents No. 1 and 2 : Mr. Bhupender Gupta, Senior Advocate with Mr. Neeraj Gupta, Advocate. None for respondent No. 3. --------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 18.08.2006, passed by the learned Additional District Judge, Shimla, H.P., Camp at Rohru in Civil Appeal No. 38- R/13 of 2006. 2. Material facts necessary for adjudication of this Regular Second Appeal, are that the appellant- 1 Whether the reporters of the local papers may be allowed to see the judgment? Yes. - 2 - plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) has filed a suit for permanent prohibitory injunction restraining the respondents- principal defendants No. 1 and 2, namely, Shri Moti Lal and Shri Shamsher Singh (hereinafter referred to as “the defendants” for brevity sake) from interfering in the peaceful and settled possession of the plaintiff in the suit land comprised in Khasra No. 26, measuring 0-20-03 hectares, situated in Mouja Bashla, Tehsil Rohru, District Shimla. According to the averments, the plaintiff alongwith respondent No. 3- proforma defendant, namely, Shri Jai Lal (hereinafter referred to as “the proforma defendant” for convenience sake), is in possession as an owner by virtue of exchange over the land in suit. Plaintiff is in exclusive possession as an owner since 1978 and has also planted more than 70 apple plants in the year, 2002. The defendants No. 1 and 2, without any right and title trespassed over the suit land. 3. Defendants No. 1 and 2 contested the suit. According to them, the suit land is joint. The suit land has been allotted to Sh. Sidhu Ram, father of the defendants by way of a family arrangement. The same was accepted by the plaintiff. The suit land is in possession of defendants as well as their father Shri Sidhu Ram. An apple orchard has been raised over the same and potato crop has been sown. Plaintiff never remained in possession of the suit land and on the other hand, the land known as ‘Kewla’ , i.e. land in - 3 - suit is coming in peaceful possession of the defendants. The Fard Takseem was signed by the father of the plaintiff and other co-sharers. The land, by way of partition, has been given by other co-sharers including the father of the plaintiff to Shri Sidhu Ram and the Fard Takseem was signed by the father of the plaintiff. Shri Sidhu Ram is a necessary party to the suit. 4. The defendant No. 3 also resisted and contested the suit. According to him, the suit land was in joint possession of the joint family of the ancestors of the plaintiff, proforma defendant as well as defendants No. 1 and 2. The family partition took place in the year 1984 between the ancestors of the parties and the suit land was allotted in family partition to Shri Sidhu Ram, father of the defendants No. 1 and 2. Plaintiff has never planted apple orchard over the suit land. 5. Replication was filed by the plaintiff, reiterating the stand taken in the plaint. 6. The proforma defendant was proceeded ex parte on 04.11.2003. The trial Court framed the issues. The suit was dismissed by the learned trial Court on 25.07.2005. Plaintiff preferred an appeal before the learned Additional District Judge, Shimla. The same was dismissed on 18.08.2006. Hence, this Regular Second Appeal. 7. This Regular Second Appeal was admitted on the following substantial questions of law: - 4 - “1. Whether the Courts below have fallen in grave error and committed material illegality by ignoring the documents exhibits PW-1/A, PW-1/B, PW-5/A, PW-2/A and PW-4/A and if so, its effect on the judgments of the Courts below? 2. Whether the Courts below were justified in non-suiting the plaintiff by relying upon the assertions made in the written statement allegedly filed by proforma respondent No. 3 who never appeared in the witness box in support of his written statement? 3. What is the effect of findings of the Ld. First Appellate Court in the present case on the basis of partition deed Exhibit DW-3/B in this case and negation of the same partition deed Exhibit D-1 in Civil appeal No. 17-R/13 of 2005 between the same parties and with respect to the same property decided on the same date by the same Presiding Officer?” 8. Mr. Ajay Kumar, learned counsel for the appellant, on the basis of substantial questions of law framed, has strenuously argued that both the Courts below have misread and misconstrued the oral as well as documentary evidence. According to him, the learned Court below have ignored Ex. PW-1/A, Ex. PW- 1/B, Ex. PW-5/A, Ex. PW-2/A and Ex. PW-4/A. He then argued that the learned first appellate Court has given undue weightage to Ex. DW-3/B. - 5 - 9. Mr. Bhupender Gupta, learned Senior Advocate for defendants No. 1 and 2 has supported the judgments and decrees passed by the learned Courts below. 10. I have heard the learned counsel for the parties and gone through the pleadings carefully. 11. Since all the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 12. Plaintiff has appeared as PW-1. According to him, he was in possession of the suit land since 1978. He had given Khasra No. 24 in exchange to Jia Lal in lieu of suit land. According to him, Khasra No. 24 is in possession of Jia Lal. A partition took place in 1984, but the disputed land was not partitioned. The defendants attempted to interfere in the suit land. He executed a written Fard regarding the disputed land with Jia Lal, which is mark ‘Y’. The affidavit is mark ‘Z’. However, in his cross-examination, he has admitted that the documents mark ‘Y’ and ‘Z’ were executed with Jia Lal during the pendency of the suit. He went to Patwari for incorporating their possession in the revenue record. He has also admitted that one Ara Machiene (Sawmill) existed over Khasra No. 27, which belongs to Sidhu Ram. He has denied that Khasra Nos. 26 and 27 were of the same plot, however, he has again admitted that it was single plot. He has also admitted that he used to cultivate the land for last 3-4 years back. However, he did not remember when he - 6 - cultivated the same lastly. He denied the suggestion that the possession of the suit land was in possession of Sidhu Ram, father of the defendants since, 1984. 13. PW-2, Roshan Lal has deposed about the execution of Fard Ex. PW-2/A. According to him, both the parties appended their signatures after understanding the same as correct. In his cross- examination, he has admitted that he did not visit the spot. He has specifically submitted that he was not aware regarding the dispute between the parties. He has also admitted that he has never visited the spot after 1983. 14. Hardev Sharma, Advocate has appeared as PW- 3. He has attested the affidavit mark ‘Z’. He has also stated that he has read over the affidavit to Jia Lal and thereafter attested the same. In his cross- examination, he has admitted that Fard Ex. PW-2/A was neither written nor executed in his presence. He has admitted that he did not know as to whether the Jamabandis were attached with the Fard or not. 15. Surmu Mall (PW-4) has testified about the execution of Ex. PW-4/A. He was working as a document writer since 1980. He has prepared Ex. PW-4/A at the instance of Jia Lal. He has put his signature under red circle ‘A’ in his presence. In his cross- examination, he has stated that according to Ex. PW- 4/A, Jia Lal was the owner of Khasra No. 26. He has also stated that whatever has been written in Ex. PW- 4/A, the same was written by him at the instance of - 7 - Jia Lal. He has also admitted that document Ex. PW-4/A was executed on 24.11.2003. 16. Shri Ashok Mehta, Patwari has appeared as PW-5. He has deposed that Ex. PW-1/A and Ex. PW-1/B were issued by him. He has also prepared tatima Ex. PW-5/A. He also deposed that Khasra Nos. 24, 26 and 27 were denoted as ‘Kewala’ in local language. In his cross-examination, he has admitted that he issued tatima Ex. PW-5/A from the latha and did not visit the spot. He also deposed that he did not know who was in possession of what Khasra number at the spot. 17. Indira Devi has appeared as DW-1. She has prepared documents Ex. DW-1/A and Ex. DW-1/B. 18. Shri Moti Lal, one of the defendants has appeared as DW-2. According to him, the partition took place in 1984 and thereafter, all the co-sharers used to reside separately. The partition fard was written by one Shyam Lal. He also stated that the disputed land came to their possession in partition. They have sown potato and mustard crop and also planted apple plants over the disputed land. According to him, plaintiff never remained in possession of the suit land. Plaintiff has executed the exchange deed with Jia Lal during the pendency of the suit. He further deposed that the plaintiff has filed this suit just to harass them. He has denied the suggestion that Jia Lal and Rattan Dass were owners in possession as per revenue record. - 8 - 19. DW-3 Shri Shyam Lal has testified that Sidhu Ram, father of the defendants were five brothers, namely, Sidhu Ram, Ram Singh, Man Singh, Budhi Singh and Tulsi Ram and he conducted the partition amongst them in 1984. He appended his signature upon fard Ex. DW-3/A under red circle ‘A’. He further deposed that according to partition Fard, the disputed land fallen into the share of Sidhu Ram alongwith Sawmill. In his cross-examination, he has admitted that Sidhu Ram had filed suit against Rattan Dass and he had also given his statement in that suit. 20. DW-4 Shri Bansi Lal has deposed that he has seen the disputed land. According to him, Sidhu Ram was in possession of the suit land for the last 15-20 years. His residence is near the suit land and he used to go there now and then. 21. DW-5, Shri Kehar Singh has testified that he has seen the disputed land and Sidhu Ram is cultivating the same since, 1984. He has also stated that Sidhu Ram has planted apple plants and also sown potato crop over the suit land. In his cross- examination, he has stated that his land is just 50-60 metres away from the suit land. 22. Plaintiff has also placed on record Ex. PW- 1/A, copy of Jamabandi for the year 1996-97 and Ex. PW-1/B, which is also a copy of Jamabandi for the year 1996-97. Ex. PW-2/A is a copy of fard takseem executed between the plaintiff and Jia Lal, whereby they have exchanged the suit land with each other. However, the - 9 - fact of the matter is that Ex. PW-2/A has been prepared after the filing of the suit. The suit was filed on 09.04.2003. Ex. PW-2/A was prepared on 22.11.2003. Ex. PW-4/A has also been prepared on 24.11.2003, i.e., after the filing of the suit. Plaintiff could not explain why these documents have been prepared after the filing of the suit. Proforma defendant No. 3, Jia Lal though has been proceeded ex parte on 04.11.2003, however, he has categorically stated in his written statement that plaintiff was not in possession of the suit land and the suit land had fallen to the share of Sidhu Ram, father of the defendants in family partition, which took place in 1984. PW-1 has also not testified on what date the defendants tried to interfere in the suit land or threatened the plaintiff to dispossess him from the suit land. The presumption, which was attached to Jamabandis, i.e., Ex. PW-1/A and Ex. PW-1/B is rebutted by Ex. PW-2/A and Ex. PW-4/A. Moreover, according to proforma defendant, Jai Lal, the suit land has fallen to the share of Sidhu Ram, father of the defendants in 1984. DW-2 Moti Lal has stated that the suit land has come to the share of father of Sidhu Ram in the family partition carried in 1984. DW-3 Shyam Lal has also supported the version of DW-2. According to him, the defendants were in possession of the suit land. He has carried out the demarcation. He has put his signatures on fard Ex. DW-3/A in red circle ‘A’. - 10 - 23. Plaintiff has also filed an application under Order 41 Rule 27 read with Section 94 and 151 of the Code of Civil Procedure. 24. The application was contested by the defendants No. 1 and 2 by filing reply. 25. Mr. Ajay Kumar, learned counsel for the appellant has vehemently argued that during revenue settlement, original Khasra No. 17, measuring 3 bigha and 9 biswas was divided into two new Khasra Nos., i.e., Khasra No. 27 and Khasra No. 26. According to him, Khasra No. 27 is in possession of the defendants. The family settlement arrived at between the plaintiff and Jia Lal, proforma defendant, was entered in the revenue record vide mutation No. 222, dated 17th July, 2004. According to Mr. Ajay Kumar, Khasra No. 26, came to the share of plaintiff. He further argued that due to a bonafide mistake and omission on part of the plaintiff, mutation orders, dated 03.06.1968 and 17.07.2004 could not be adduced in evidence. The mutation dated 03.06.1968 was within the knowledge of the plaintiff. Plaintiff had sufficient opportunity to lead evidence, for reasons best known to him, he did not produce the entire evidence. As far as mutation No. 222, dated 17th July, 2004 is concerned, it was after the filing of the suit by the plaintiff. The suit was instituted on 09.04.2003 and it was decided on 25.07.2005. There is no cogent and tangible evidence placed on record by the plaintiff why these two documents were not placed - 11 - on record in accordance with law during the pendency of the Civil Suit. Consequently, there is no merit in this application and the same is dismissed. 26. In view of the observations and discussions made hereinabove, it is established that the plaintiff has failed to prove that he has exchanged the land with Jia Lal. Jia Lal has not supported the version of plaintiff. It is established on record that the family partition has taken place, whereby the disputed land has come to the share of Shri Sidhu Ram as per Ex. DW- 3/A and Ex. DW-3/B, dated 26.01.1984. 27. Their Lordships of the Hon’ble Supreme Court in Alka Gupta Vs. Narender Kumar Gupta (2010) 10 Supreme Court Cases 141 have succinctly explained the applicability of Order 2 Rule 2 of the Code of Civil Procedure, explanations-III and IV to Section 11 of the Code of Civil Procedure as under: “20. Plea of res judicata is a restraint on the right of a plaintiff to have an adjudication of his claim. The plea must be clearly established, more particularly where the bar sought is on the basis of constructive res judicata. The plaintiff who is sought to be prevented by the bar of constructive res judicata should have notice about the plea and have an opportunity to put forth his contentions against the same. In this case, there was no plea of constructive res judicata, nor had the appellant plaintiff an opportunity to meet the case based on such plea. - 12 - 21. Res judicata means `a thing adjudicated' that is an issue that is finally settled by judicial decision. The Code deals with res judicata in section 11, relevant portion of which is extracted below (excluding Explanations I to VIII): "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" 22. Section 11 of the Code, on an analysis requires the following essential requirements to be fulfilled, to apply the bar of res judicata to any suit or issue: (i) The matter must be directly and substantially in issue in the former suit and in the later suit. (ii) The prior suit should be between the same parties or persons claiming under them. (iii) Parties should have litigated under the same title in the earlier suit. (iv) The matter in issue in the subsequent suit must have been heard and finally decided in the first suit. (v) The court trying the former suit must have been competent to try particular issue in question. 23. To define and clarify the principle contained in Section 11 of the Code, eight Explanations have been provided. Explanation I states that the expression `former suit' refers to a suit which had been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II - 13 - states that the competence of a court shall be determined irrespective of whether any provisions as to a right of appeal from the decision of such court. Explanation III states that the matter directly and substantially in issue in the former suit, must have been alleged by one party or either denied or admitted expressly or impliedly by the other party. “Explanation IV provides that any matter which might and ought to have been made a 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.” The principle of constructive res judicata emerges from Explanation IV when read with Explanation III both of which explain the concept of "matter directly and substantially in issue". 24. Explanation III clarifies that a matter is directly and substantially in issue, when it is alleged by one party and denied or admitted (expressly or impliedly) by the other. Explanation IV provides that where any matter which might and ought to have been made a ground of defence or attack in the former suit, even if was not actually set up as a ground of attack or defence, shall be deemed and regarded as having been constructively in issue directly and substantially in the earlier suit. Therefore, even though a particular ground of defence or attack was not actually taken in the earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard to the said issue being taken in the second suit in view of the principle of constructive res judicata. Constructive res judicata deals with grounds of attack and defence which ought to have been raised, but not raised, whereas Order 2 Rule 2 of the Code relates to reliefs which ought to - 14 - have been claimed on the same cause of action but not claimed. 28. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this petition and the same is dismissed, so also the pending application(s), if any. No costs. (Rajiv Sharma) Judge December 19, 2011. (bhupender) - 15 -