R.S.A. No. 1706 of 2005 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 1706 of 2005 (O&M) Date of decision: 12.05.2009 Jaswant Kaur and others ....appellants versus Jasaunda Devi and others ....respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Sanjeev Walia, Advocate, for the appellants. Mr. Vijay Sharma, Advocate, for the respondents. *** VINOD K. SHARMA, J. (ORAL) C.M. No. 4571-C of 2005 This is an application under Section 151 of the Code of Civil Procedure for condoning the delay of 74 days in refiling the present appeal. For the reasons stated in the application, C.M. is allowed and the delay of 74 days in refiling the appeal is ordered to be condoned. R.S.A. No. 1706 of 2005 The defendant/appellants by way of this regular second appeal have challenged the judgment and decree dated 5.10.2004 passed by the learned Courts below, vide which the suit filed by the plaintiff/respondents for declaration, that they were owners in possession R.S.A. No. 1706 of 2005 (O&M) -2- of the land falling in khasra Nos. 379 and 380 situated at village Ranbirpura, Tehsil and District Patiala, has been partly decreed. The plaintiff/respondents brought a suit on the pleadings, that the plaintiffs No. 1 to 6 were owners in possession of the suit land for more than last 25 years, wherein they sunk a bore which was operated by engine installed in the land bearing khasra No. 380. Gaya Dass, original owner of the land, executed a registered 'Will' in favour of Ganpat, Hari Ram, Brahmchari sons of Shanker Ram i.e. his grandson. Smt. Ratno widow of Gaya Dass also executed a registered 'Will' dated 19.4.1976 qua the same land in favour of the plaintiff/respondents. They also claimed to have become owners by way of adverse possession by claiming their possession to be continuous, peaceful and uninterrrupted for more than 25 years. Ganpat and Brahmchari, the beneficiaries of the 'Will' were said to have died 3/4 years ago. The plaintiff/respondents further claimed to be in possession of 1 ½ bhigas of land bearing khasra No. 385, which adjoins the land bearing khasra No. 379. The said land was also said to be in possession of Ganpat. However, the said khasra number was also bequeathed to Ram Singh predecessor-in-interest of the defendant/appellants. The suit was contested by taking preliminary objections, that the suit was not maintainable and that the suit was barred by principle of res judicata. The matter in dispute was said to have been finaly decided by the then Sub Judge, 1st Class, in civil suit No. 111 on 30.1.1990. The decree was upheld by the learned lower appellate Court, therefore, the suit was said to be barred. The factum of the execution of 'Will' by Gaya Dass was not disputed. R.S.A. No. 1706 of 2005 (O&M) -3- The learned trial Court, on the pleadings of the parties, was pleased to frame the following issues: - "1. Whether plaintiffs No. 1 to 6 are owners in possession of khasra No. 379(6-3) and 380(6-5) as alleged in para No. 2 of the plaint? OPP 2. Whether plaintiffs have become owners of 1 ½ bhigas of land out of khasra No. 385 adjoining to khasra No. 379 by adverse possession? OPP 3. Whether plaintiffs are entitled to injunction as prayed for? OPP 4. Whether suit is false, frivolous, vexatious and is not maintainable? OPD 5. Whether the suit is barred by principles of res judicata? OPD 5A Whether suit is liable to be dismissed under Order 23 of CPC? OPD 6. Relief." In view of the admission, that the registered 'Will' was executed by owner Gaya Dass in favour of the plaintiff/respondents, on issue No. 1 they were held to be owners in possession of khasra Nos. 379 (6-3) and 380(6-5). However, on issue No. 2, it was held that the plaintiffs had failed to prove that they had become owners of 1 ½ bhigas of land out of khasra No. 385 by way of adverse possession. On issue No. 3, the learned trial Court was pleased to hold, that the plaintiffs were entitled to injunction with respect to khasra Nos. 379 and 380, which was proved to be under the ownership and possession of the plaintiff/respondents, whereas injunction qua khasra No. 385 was declined, as the plaintiff/respondents had failed to prove their ownership by way of adverse possession qua said khasra number. Issues No. 4 and R.S.A. No. 1706 of 2005 (O&M) -4- 5A were decided against the defendant/appellants. Consequently, the suit was partly decreed with respect to khasra Nos. 379 and 380, whereas the claim of injunction qua khasra No. 385 was declined. The learned lower appellate Court affirmed the findings recorded by the learned trial Court. Mr. Sanjeev Walia, learned counsel appearing on behalf of the appellants contends that the appeal raises the following substantial questions of law: - "1. Whether it was permissible for the learned Courts below to have partly decreed the suit, in view of the fact that two 'Wills' were set up by the plaintiff/respondents? 2. Whether the suit filed by the plaintiff/respondents was barred by principle of res judicata?' In support of the substantial questions of law, the learned counsel for the appellants contends, that once plaintiff/respondents had set up two 'Wills' i.e. one by Gaya Dass and other by his widow Ratno Devi, the learned Courts below, therefore, committed an error in decreeing the suit by holding plaintiff/respondents to be owners in possession. The contention of the learned counsel for the appellants is, that assertion of fact that two 'Wills' were executed would lead to conclusion that no title was passed on to the plaintiff/respondents. This contention is totally mis-conceived. Once it is not in dispute that Gaya Dass was the owner in possession of the property in dispute and the 'Will' executed was not disputed, a valid title was passed on to the plaintiff/respondents immediately on death of Gaya Dass. The R.S.A. No. 1706 of 2005 (O&M) -5- subsequent 'Will' by Ratno Devi was merely a paper transaction, as she did not own any property, which she could transfer. No fault, therefore, can be found with the findings recorded by the learned Courts below, holding the plaintiff/respondents to be owners in possession of the property willed. The learned counsel for the appellant also contended, that the learned Courts below have failed to notice that the earlier suit filed was for injunction by the predecessor-in-interest of the plaintiff/respondents which was dismissed, therefore, the suit filed by the plaintiff/respondents was barred by principle of res judicata. This contention again is mis-conceived. The earlier suit was not qua title, whereas in the present suit, question of title was involved. Suit for injunction merely on the basis of possession could not be said to be a bar to subsequent suit claiming declaration on the basis of title. The substantial questions of law raised are answered against the appellant. No merit. Dismissed. (Vinod K. Sharma) Judge May 12, 2009 R.S.