RSA No.1017 of 1985 -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1017 of 1985 Date of decision:22.03.2011. Khiali Ram ...Appellant Versus Kanshi Ram ...Respondent CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. J.S.Thind, Advocate, for the appellant. Mr. Ashok Verma, Advocate, for the respondent. ***** RAKESH KUMAR JAIN, J. The defendant is in second appeal against the judgment and decree of the Courts below by which suit filed by the plaintiff for possession has been decreed. In brief, the plaintiff filed a suit for possession in respect of the land measuring 11 Kanals 07 Marlas comprised in Square No.268, Killa No.23/1(1-16), Square No.285 Killa Nos.3 (4-11), 8/1(5-0), situated in village Ding, Tehsil and District Sirsa. It is alleged by him that he has purchased the suit land on 16.06.1971 but the defendant, in collusion with the revenue authorities, succeeded in getting the khasra girdawari in his name and on the basis of this wrong entry has forcibly occupied it, though no batai was ever paid by him. In the written statement, the averments made in the plaint were denied and it was alleged that the plaintiff had earlier filed a suit in respect of the suit land which was dismissed by the learned Sub Judge, Sirsa on 28.01.1982, therefore, the present suit is not maintainable. On the pleadings of the parties, following issues were framed on 16.02.1983: - “1. Whether the plaintiff purchased the suit land RSA No.1017 of 1985 -2- ****** through a registered sale deed No.1324 dated 16.06.1971?OPP. 2. Whether the sale deed dated 16.06.1971 is a forged one?OPD. 3. Whether the suit is barred by the principles of res judicata?OPD. 4. Whether the plaintiff has no locus standi to file the present suit?OPD. 5. Relief.” Both the parties led their respective oral as well as documentary evidence. The defendant did not challenge the finding recorded by the learned Trial Court before the learned First Appellate Court on issues Nos.1 and 2, however, issues Nos.3 and 4 were keenly contested by him, but the learned First Appellate Court dismissed the appeal on the ground that the earlier suit filed by the plaintiff was dismissed in default of appearance but that order could not have been passed under Order 9 Rule 8 of the Code of Civil Procedure, 1908 [for short “CPC”] except for under Order 9 Rule 3 of CPC and as such, the second suit is maintainable. Learned counsel for the appellant has raised two grounds to attack the judgment and decree of the Courts below: i) that the earlier suit filed by the plaintiff was dismissed in default under Order 9 Rule 8 of CPC, therefore, in terms of Order 9 Rule 9 of CPC the second suit on the same cause of action is not maintainable, and ii) that the Civil Court had no jurisdiction to try the suit as the defendant has been recorded as tenant at Will in the khasra girdawari and for that matter the remedy was available to him under Section 9 of the Punjab Security of Land Tenures Act, 1953 [for short “the Act of 1953”]. Elaborating his arguments, learned counsel for the appellant has drawn the attention of this Court to the order dated 28.01.1982 passed in the earlier Civil Suit No.583 dated 19.06.1980 titled as `Kanshi Ram Vs. State of Haryana and others', which is reproduced as under: - “Present: Sh. Jagroup Singh, G.P. for the State. ***** RSA No.1017 of 1985 -3- ****** The case was called a number of time today. None on behalf of the plaintiff have come present. The suit is hereby dismissed U/O 9 Rule 8 C.P.C. It is 3.00 p.m. Announced. Sd/- 28.01.1982. Sub Judge 1st Class, Sirsa. 28.01.1982.” He has further drawn the attention of this Court to Order 9 Rule 9 of CPC which provides that where a suit is wholly or partly dismissed under Order 9 Rule 8 of CPC, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for setting aside the dismissal order by assigning sufficient cause for his non-appearance when the suit was called for hearing. In this regard, learned counsel for the appellant has submitted that the word used in Order 9 Rule 9 is “shall be precluded from bringing a fresh suit in respect of the same cause of action”. Learned counsel for the plaintiff/respondent has submitted that the cause of action in both the suits is altogether different and for that matter he has read cause of action in the first suit which was filed on 19.06.1980, which is as under: - “That the cause of action arose to the plaintiff firstly on 16.06.1971, when the land was purchased by the plaintiff from Ghansham Dass vendor and finally a week back from the flat denial of the defendant to admit the request of the plaintiff.” In the first suit, the plaintiff had sought decree for declaration to the effect that he is the owner in possession of land measuring 11 Kanals 07 Marlas purchased by him from one Ghansham Dass vide sale deed dated 16.06.1971 on the basis of which he is entitled to get his name entered as owner and also prayed for consequential relief of permanent injunction restraining the defendant from mutating the land in favour of State Government or leasing it out to other persons illegally and unauthorizedly and also prayed for possession in case he is not found in possession. The cause of action shown in the present suit is as under: - RSA No.1017 of 1985 -4- ****** “That the cause of action firstly arose to the plaintiff on 05.11.1978 when on the basis of bogus report No.66 in the Report Roznamcha of the Patwari, the defendant got the khasra girdawari corrected in his name and occupied the land forcibly and is continuing since then and lastly about a week back when the defendant refused to hand over the possession of the suit land.” After hearing learned counsel for the parties in this regard, I am of the view that the provisions of Order 9 Rule 9 of CPC would not apply to the present case because the cause of action in both the suits are altogether different. In the earlier suit, the plaintiff has claimed himself to be the owner in possession and had sought relief of permanent injunction and as a matter of abundant caution the possession was also claimed in case he is dispossessed or not found in possession, whereas in the second suit he has alleged that he has been dispossessed and claimed only possession, therefore, both the suit were on different cause of action and hence, the first contention raised by learned counsel for the defendant is hereby rejected. Learned counsel for the appellant has further raised the second issue that the Civil Court had no jurisdiction to try the suit because the defendant has been recorded as tenant at Will in khasra girdawari and as such the remedy was with the Revenue Court by way of seeking eviction. Learned counsel for the respondent/plaintiff has submitted that an entry in the revenue record as ghair maurusi is not sufficient to confer status of tenant because even a person in unauthorized possession is described as such. In this regard, he has relied upon a decision of this Court in the case of Ram Karan Vs. The Financial Commssioner and others, 1980 PLJ 295 and has submitted that Section 9 of the Act of 1953 lays down grounds for the land owner to seek ejectment of the tenant. He also submitted that in the khasra girdawari, the defendant is recorded as tenant ghair maurusi billa lagaan bawajah muhadia bai, meaning thereby that he was found to be in possession as tenant at Will without payment of rent because of agreement to sell. Thus, RSA No.1017 of 1985 -5- ****** there is no relationship of landlord and tenant between the parties which could attract Section 9 of the Act of 1953 for the purpose of excluding the jurisdiction of the Civil Court for filing the suit for possession. No other point has been raised by learned counsel for the appellant. In view of the aforesaid discussion, I do not find any question of law much-less substantial as provided under Section 100 of CPC involved in this appeal and as such, the present appeal is hereby dismissed, however, without any order as to costs. March 22, 2011 (RAKESH KUMAR JAIN) vinod* JUDGE