Regular Second Appeal No. 1603 of 2009 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Regular Second Appeal No. 1603 of 2009 Date of decision : January 19, 2011 Jaswant Singh and another ....Appellants versus Kuldip Raj and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. R.K. Arya, Advocate, for the appellant Mr. HS Dhindsa, Advocate, for the respondents L.N. Mittal, J. (Oral) Plaintiffs Jaswant Singh and Kulwant Singh (both brothers) having succeeded in the trial court but having been non-suited by the lower appellate court are in second appeal. Appellants filed suit against Gian Chand defendant (since deceased and represented by respondents as his legal heirs) alleging that plaintiffs purchased 31 kanals 9 marlas land (including 24 kanals land in suit comprised of khasra no. 92R/8, 9 and 10) from Kundan Singh vide registered sale deed dated 21.12.1982 and are owners in possession thereof. Kundan Singh had purchased said land from Central Government. Defendant has no right, title or interest in the suit land. Even if defendant had any title in the suit land, the same stands extinguished by adverse Regular Second Appeal No. 1603 of 2009 -2- possession of the plaintiffs over the suit land since 1982 i.e. for more than 12 years. However, the defendant threatened to take possession of the suit land on the basis of decree obtained by him against State of Punjab and others. Said decree is not binding on the plaintiffs as they were not party to the same. Accordingly, the plaintiffs sought declaration that they are owners in possession of the suit land measuring 24 kanals and defendant has no right, title or interest therein. The plaintiffs also claimed permanent injunction restraining defendant from dispossessing the plaintiffs from the suit land. The defendant raised various preliminary objections including the objection that the suit is not maintainable in the present form and plaintiffs have concealed material facts. On merits, it was pleaded that neither Kundan Singh was owner of the suit land nor plaintiffs are owners thereof. Sale in favour of plaintiffs by Kundan Singh is illegal and null and void and is not binding on the defendant. On the contrary, being evacuee property it was put to auction by competent officer in the year 1953 and sale certificate of suit land and other land was issued in favour of defendant's father Salig Ram being purchaser in the auction. On the death of Salig Ram his legal heirs including the defendant became the owners of the suit land. Defendant's suit for possession of the suit land and other land stands decreed. In execution petition thereof, plaintiffs herein filed objections which were dismissed on 17.1.1998. The plaintiffs did not challenge the said order by filing appeal or revision. Plaintiffs have concealed these material facts. Plaintiffs have no right, title or interest in the suit land. They are tress-passers in the suit land. Defendant, therefore, made counter Regular Second Appeal No. 1603 of 2009 -3- claim for possession of the suit land. Various other pleas were also raised. Learned Civil Judge (Junior Division), Batala vide judgment and decree dated 27.1.2005 decreed the suit of the plaintiffs and dismissed the counter claim of the defendant. First appeal preferred by defendant has, however, been allowed by learned Additional District Judge, Gurdaspur vide judgment and decree dated 19.2.2009 and thereby suit filed by the plaintiffs stands dismissed. Feeling aggrieved, plaintiffs have filed the instant second appeal. Learned counsel for the appellants vehemently contended that plaintiffs were not party to the suit in which decree for possession was passed in favour of defendant Gian Chand and therefore, plaintiffs are not bound by the said decree. It was also contended that the said decree stipulated that possession of the suit land and another land be given to the plaintiff and if khasra numbers of the said land are not available then possession of equitable area of the land measuring 42 kanals 8 marlas be given to the plaintiff and defendants no. 2 to 5 of the said suit. It was, thus, argued that Gian Chand could take possession of equal alternate area in execution of the said decree as plaintiffs had become owners of the suit land prior to the passing of the said decree having purchased it from Kundan Singh. On the other hand, learned counsel for the respondents contended that plaintiffs herein had preferred objections in execution petition filed by Gian Chand for execution of the decree dated 7.1.1991 and the said objections were dismissed vide order dated 17.1.1998 which order had attained finality and therefore, the instant separate suit is not Regular Second Appeal No. 1603 of 2009 -4- maintainable in view of Order 22 Rule 101 of the Code of Civil Procedure (in short, CPC). Learned counsel for the appellants, however, contended that the defendant in the written statement did not even raise any such objection. I have carefully considered the rival contentions. It is undisputed as also borne out from the evidence on record that decree dated 7.1.1991 was passed in suit filed by Gian Chand against State of Punjab and others thereby decreeing suit for possession of 42 kanals 8 marlas land including present suit land. The decree also provided that in case khasra numbers of the said land were not available then possession of equitable area of 42 kanals 8 marlas be given to Gian Chand plaintiff and defendants no. 2 to 5 of the said suit. Gian Chand filed execution petition for execution of the said decree. In the said execution petition, plaintiffs herein filed objections wherein they raised the same plea as raised in the instant suit. The said objections were resisted by decree holder by filing reply. The said objections Ex. D3 were ultimately dismissed vide order dated 17.1.1998 Ex. D4. The said order has attained finality as it was not challenged by the plaintiffs by filing any appeal or revision against the same. Order 21 Rule 101 CPC is reproduced herein-under:- “Question to be determined.- All questions (including questions relating to right, title or interest in the property) arising between the parties to a proceeding on an application under rule 97 or rule 99 or their representatives, and relevant to the adjudication of the application, shall be determined by the Court dealing with the application, and not by a separate suit and for this purpose, the Court shall, notwithstanding anything Regular Second Appeal No. 1603 of 2009 -5- to the contrary contained in any other law for the time being in force, be deemed to have jurisdiction to decide such questions.” Bare perusal of the aforesaid provision reveals that instant separate suit cannot be entertained to adjudicate upon the question raised by the plaintiffs in the suit because the plaintiffs had already filed objections in the execution petition. Consequently, lower appellate court has rightly non-suited the plaintiffs on this ground holding that instant separate suit is not maintainable in view of Order 21 Rule 101 CPC. As regards pleading of the aforesaid objection by the defendant, the defendant specifically pleaded all the relevant facts in the written statement and also pleaded that the suit is not maintainable in the present form although specific reference was not made in the written statement to the provision of Order 21 Rule 101 CPC. However, law is not required to be pleaded and only facts are required to be pleaded. All relevant facts for applicability of Order 21 Rule 101 CPC have been specifically pleaded in the written statement. Consequently, the aforesaid contention of counsel for the appellant that there is no such pleading cannot be accepted. On the contrary, the plaintiffs referred to decree dated 7.5.1991 in the plaint but inspite thereof, plaintiffs with malafide intention concealed the material fact that they had filed objections in the execution petition of the said decree and the said objections stood dismissed. For the reasons aforesaid, finding of the lower appellate court that the instant suit is not maintainable in view of Order 21 Rule 101 CPC is affirmed. Consequently, there is no merit in the instant second appeal. No question of law much less substantial question of law arises for Regular Second Appeal No. 1603 of 2009 -6- determination in the instant second appeal. The appeal is, therefore, dismissed. ( L.N. Mittal ) January 19, 2011 Judge 'dalbir'