R. S. A. No. 2669 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 2669 of 1997 Date of Decision : July 30, 2010 Ram Chander and others .... Appellants Vs. Kali Ram .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Vinod S. Bhardwaj, Advocate for the appellants. Mr. Rakesh Nehra, Advocate for the respondent. * * * L. N. MITTAL, J. (Oral) : This is second appeal by plaintiffs who have been unsuccessful in both the courts below. Suit was filed by appellants initially against Kali Ram – respondent and Mangti. However, Mangti had died prior to institution of the suit and therefore, her name was deleted from the array of defendants in the trial court and the suit proceeded against Kali Ram – respondent only. The dispute is regarding land measuring 263 kanals 15 marlas, which was once owned by Netu. On his death, it was inherited by his son R. S. A. No. 2669 of 1997 2 Matu and on his death, it was inherited by his widow Mano. She also died issueless. Thereupon, the suit land was inherited by Matu's three sisters namely Telo, Patori and Mano. Plaintiffs are descendants of Ganga – brother of Netu aforesaid. Plaintiffs obtained consent judgments and decrees dated 04.10.1974 and 17.02.1977 in two suits declaring the plaintiffs to be owners in possession of the entire suit land measuring 263 kanals 15 marlas. However, defendants herein i.e. Kali Ram and Mangti were not party to the said decrees. In one suit bearing No.1046 of 1972, filed by appellants' father Ranpat, application had been moved to implead the present defendants Kali Ram and Mangti as party, but later on, they were deleted from the array of defendants. Kali Ram and Mangti claimed themselves to be son and daughter of Mano and therefore claimed to have inherited 1/3rd share of Mano in the total suit land. The dispute in the instant suit is regarding said 1/3rd share only and there is no dispute in the instant suit regarding remaining 2/3rd share of 263 kanals 15 marlas land in suit. The plaintiffs/appellants alleged that Kali Ram and Mangti are not son and daughter of Mano and therefore, have no share in the suit land and plaintiffs are owners in possession of the entire suit land. Respondent Kali Ram/defendant no.1 contested the suit and pleaded that on death of Mano, her 1/3rd share of suit land was inherited by R. S. A. No. 2669 of 1997 3 defendants Kali Ram and Mangti being his son and daughter respectively and they became owners in possession thereof and on the death of Mangti, her share has also come to Kali Ram and therefore, Kali Ram is owner in possession of the said 1/3rd share in the suit land. Judgments and decrees relied on by the plaintiffs were alleged to be obtained by fraud and misrepresentation and without impleading the defendants as party thereto. Various other pleas were also raised. Learned Additional Senior Sub Judge, Narwana, vide judgment and decree dated 28.04.1993, dismissed the plaintiffs' suit. First appeal preferred by the plaintiffs stands dismissed by learned District Judge, Jind, vide judgment and decree dated 27.02.1997. Feeling aggrieved, plaintiffs have preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Admittedly, present defendants Kali Ram and Mangti were not made party to the suits, in which the plaintiffs obtained consent judgments and decrees dated 04.10.1974 and 17.02.1977. Judgment and decree dated 04.10.1974 were later on modified because the same depicted the present defendants also as party to the litigation, although their names had been deleted. Consequently, in corrected judgment and decree, their names were deleted. In the other suit, in which judgment and decree dated 17.02.1977 were passed, Kali Ram and Mangti were not party thereto. Consequently, R. S. A. No. 2669 of 1997 4 judgments and decrees relied on by the plaintiffs have no bearing whatsoever against the defendants, who were not party thereto. On the basis of said judgments and decrees, plaintiffs cannot assert any right as against the defendants. Defendants are not bound by the said judgments and decrees being not party thereto and consequently, rights of the defendants in the suit land are not affected by the said judgments and decrees. Learned counsel for the appellants vehemently contended that claim of the defendants in the instant suit is barred by res judicata in view of judgment and decree dated 21.11.1987 (Ex.P-9). Learned counsel for the appellants contended that present defendants Kali Ram and Mangti were defendants no.32 and 33 (as defendants' set no.4) in the said suit and they admitted the claim of plaintiff of that suit except that some of the facts were denied for want of knowledge. I have carefully considered the aforesaid contention, but the same is completely misconceived and devoid of substance. Firstly, the plaintiffs in the instant suit did not even raise the plea of res judicata to bar the claim of the defendants. Plea of res judicata involves mixed questions of law and facts and therefore, such plea cannot be allowed to be raised for the first time in second appeal. Secondly, the aforesaid contention cannot be accepted on the basis of judgment and decree Ex.P-9, particularly when even pleadings of the said suit have not been produced in evidence. Thirdly, in that suit, Korde @ Kaur Dey had challenged the judgments and R. S. A. No. 2669 of 1997 5 decrees 04.10.1974 and 17.02.1977 regarding share of her mother Patori in the suit land. In that case, 1/3rd share of Mano being claimed by defendants Kali Ram and Mangti was not in issue and consequently, judgment in that case cannot operate as res judicata against the defendants' claim in the instant suit. Fourthly, Korde @ Kaur Dey – plaintiff of that suit was party to consent judgments and decrees, whereas present defendants were not party to the consent judgments and decrees under challenge. Consequently, Korde @ Kaur Dey was bound by said consent judgments and decrees, whereas present defendants are not bound by the same being not party thereto. Learned counsel for the appellants next contended that Mano was not daughter of Netu. This contention is also completely bereft of any merit. Firstly, the contention is beyond pleadings and therefore, cannot be allowed to be raised in second appeal. Any evidence on the said plea also cannot be looked into being beyond pleadings. Secondly, the plaintiffs have themselves admitted Mano to be daughter of Netu in the title of the plaint itself. While Kali Ram and Mangti were described as alleged son and daughter of Mano in the title of the plaint, Mano was described as daughter of Netu and not as alleged daughter of Netu. Even in the body of the plaint, it was nowhere pleaded that Mano was not daughter of Netu. Consequently, the aforesaid contention is completely untenable and is therefore, negatived. Both the courts below have come to concurrent finding against R. S. A. No. 2669 of 1997 6 the plaintiffs. The said finding is based on appreciation of evidence and does not suffer from any perversity or illegality. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal is completely without any merit and is accordingly dismissed. July 30, 2010 ( L. N. MITTAL ) monika JUDGE