IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1793 of 2009 Date of Decision: 29.4.2009 Sukhbir. ....... Appellant through Shri A.S.Tewatia, Advocate. Versus Kamal Nath Monga and others. ....... Respondents through Nemo. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against the judgments and decrees dated 30.4.2008 and 6.2.2009 passed respectively by the Civil Judge (Junior Division), Gurgaon (hereinafter described as `the trial Court') and the Additional District Judge, Gurgaon (referred to hereinafter as `the First Appellate Court') whereby the suit and the appeal of the plaintiff- appellant have been dismissed. The appellant had filed a suit for declaration with consequential relief of permanent injunction against the defendants-respondent nos. 1 to 3. It was prayed that the sale deed dated 11.1.1989 and the General Power of R.S.A.No.1793 of 2009 -2- .... Attorney dated 7.4.1986 be declared as illegal, void, ab initio, nonest and not binding upon his right and is bogus & forged documents and that the appellant & proforma defendants-respondent nos. 4 to 9 to the extent of 11/320th share each and proforma defendant-respondent nos. 10 to 12 to the extent of 1/320th share each were owners in possession of the land measuring 64 kanals 19 marlas situated in the revenue estate of Village Bhondsi, Tehsil & District Gurgaon. It was also prayed that respondent nos. 1 to 3 be restrained from alienating the suit land in any manner or from creating any type of charge over the same or dispossessing the appellant therefrom. In the plaint, it was pleaded that the appellant and proforma respondent nos. 4 to 9 were coparceners of Joint Hindu Family property, i.e., the land in question, to the extent of 1/32th share each during the life time of their father, Shri Mahabir Singh and after his death, their shares came to the extent of 11/320th each, whereas those of proforma respondent nos. 10 to 12 came to be 1/320 the each. It was further pleaded that being co-parceners, the appellant and proforma respondents had a right in the suit land since the time of their birth, which was being managed by their father being Karta of Joint Hindu Family. The appellant had averred that the suit land was alienated in favour of respondent nos. 1 and 2 by Mahabir Singh vide sale deed dated 11.1.1989 through General Power of Attorney, i.e., respondent no.3, which was not binding on his rights and was liable to be set aside on the ground that the same was without any legal necessity and R.S.A.No.1793 of 2009 -3- .... consideration and that the Karta of the family had never appointed any General Power of Attorney for execution of the sale deed. He had averred that there was no loan on the Joint Hindu Family which was to be paid by the Karta and that there was a custom in the Rajput community that the Manager will not alienate the agricultural land in any manner without the consent of the family members. It was specifically pleaded that no suit between the parties qua the suit property had been filed and the same was never decided by any Court of competent jurisdiction. Respondent nos. 1 & 2, who were beneficiaries of the sale of the property in question, contested the suit and pleaded that the suit was barred by the principle of res judicata as well as constructive res judicata under the provisions of Section 11 of the C.P.C. as the appellant along with his mother, other brothers and sisters had filed Civil Suit No.285 of 19.5.1993 and the said suit was dismissed by the then learned Senior Sub Judge, Gurgaon and the appeal & the Regular Second Appeal against the same were also dismissed by the District Judge, Gurgaon and this Court, respectively and, therefore, the appellant has not approached the Court with clean hands. The suit was also pleaded to be barred under provisions of Order 2 Rule 2 of the C.P.C. The status of the appellant as coparcener was denied and it was averred that Mahabir Singh had sold the suit land to them vide registered sale deed dated 11.1.1989 which was valid and could not be said to be bad. It was further averred that previously, Charan Singh, Mahabir Singh sons of Surjan Singh and Subhash son of Gaje Singh were R.S.A.No.1793 of 2009 -4- .... owners in possession of 3/4th share of the suit land and on 7.4.1986, all these persons had leased out their share in favour of Mahesh Mani Sharma and a lease deed was executed in that regard and the lease money was fixed at Rs.1500/- per annum. It was pleaded that on the same day, Charan Singh etc. had agreed to sell their share in the suit land to Harvansh for a total sale consideration of Rs.1,20,000/- and that they had received the entire sale consideration through three cheques dated 7.4.1986 and these cheques were duly got encashed by them. Respondent nos. 1 & 2 averred that after execution of the lease deed and sale agreement, Charan Singh, Subhash and Mahabir Singh were left with no interest whatsoever in the suit land and, therefore, the appellant had no right therein. They further averred that to get the sale deed registered, Charan Singh etc. had executed an irrevocable general power of attorney in favour of respondent no.3, who had executed the sale deed dated 11.1.1989 in their favour. The remaining respondents did not appear despite service and were proceeded against ex parte. The parties went to trial on the following issues:- 1. Whether the suit property is the coparcenary of plaintiff and proforma defendants?OPP 2. Whether the sale deed dated 11.1.1989 is null, void and not binding on the plaintiff?OPP 3. whether the plaintiff is entitled to the relief as prayed for?OPP R.S.A.No.1793 of 2009 -5- .... 4. Whether the suit is bad for mis-joinder and non-joinder of necessary party?OPD 5. Whether the suit is barred by principles of res judicata?OPD 6. Whether the suit is barred under Order 2 Rule 2 CPC?OPD 7. Relief. After appraisal of the entire evidence before it, the trial Court held that in the previous suit also, challenge to the sale deed in question had been made and, therefore, the suit was barred by the principle of res judicata. It accordingly dismissed the suit. In appeal, the findings of the trial Court were affirmed by the First Appellate Court. Hence, this Regular Second Appeal. Learned counsel for the appellant has contended that the findings of the Courts below are erroneous and deserve to be set aside. He further contended that the plea regarding legal necessity was not existing in the previous suit and, therefore, the appellant was very well within his right to file the instant suit with this new ground. I have thoughtfully considered the contentions of the learned counsel for the appellant and have perused the impugned judgments. It is evident that Civil Suit No.285 of 19.5.93 was filed by the appellant along with other persons, who are now arrayed as proforma respondents against respondent nos. 1 and 2 and one Ravinder Nath Monga, who was also one of the vendees, challenging the sale deed in question. R.S.A.No.1793 of 2009 -6- .... That suit was dismissed and the sale deed was held to be valid and the judgment of the lower Court was upheld up to this Court. Therefore, the subsequent suit which has now been filed by the appellant is totally misconceived and is hit by the principle of res judicata. Merely because the appellant did not take one plea which was available to him, is no ground to entertain a subsequent suit. The relevant portion of Section 11 of the C.P.C. is reproduced below:- “11. Res judicata.-No Court shall try any suit or issue in which the matter directly or 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. xx xx xx xx xx xx xx xx” In view of the above, there is hardly any ambiguity regarding the position of the law that the present suit was hit by the principle of res judicata. Moreover, the suit was hit by the provisions of Order 2 Rule 2 of the C.P.C. which prohibits a plaintiff from bringing a subsequent suit for grant of one of the reliefs in respect of the same cause of action which he could claim in the earlier suit and he omits to do so. R.S.A.No.1793 of 2009 -7- .... Concededly, the appellant and his mother,brothers and sisters had filed an earlier suit challenging the sale deed in question and that suit was dismissed and their appeals were dismissed by the District Judge and this Court. The ground of non-existence of legal necessity for sale of the suit land was very much available to the plaintiffs in that suit, but that was not pleaded and, therefore, the appellant is now estopped from challenging the sale deed on this ground. Consequently, no fault can be found with the impugned judgments. It is also to be noticed that the appellant had specifically pleaded that no other suit had been filed by him and no Court of competent jurisdiction has answered the same. In this view of the matter, the appellant has tried to mislead the Court. No substantial question of law has been shown to have arisen for determination in this appeal which is held to be devoid of any merit and is dismissed. April 29,2009 ( Mahesh Grover ) “SCM” Judge