R. S. A. No. 4615 of 2010 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : R. S. A. No. 4615 of 2010 (O&M) Date of Decision : May 19, 2011 Ishar Singh .... Appellant Vs. Sant Paramjit Singh .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. K. S. Boparai, Advocate for the appellant. * * * L. N. MITTAL, J. (Oral) : C. M. No. 13685-C of 2010 : For reasons mentioned in the application, which is accompanied by affidavit, delay of 123 days in re-filing the appeal is condoned. C. M. No. 13687-C of 2010 and Main Appeal : Defendant Ishar Singh, having failed in both the courts below, has filed the instant second appeal. Respondent-plaintiff Sant Paramjit Singh filed suit against defendant-appellant seeking declaration that the plaintiff is owner in R. S. A. No. 4615 of 2010 (O&M) 2 possession of land measuring 01 kanal 03 marlas comprising of khasra no.143 and the defendant has no right or concern with the suit land. The plaintiff also sought permanent injunction. The plaintiff alleged that suit land was purchased by plaintiff's father Baldev Singh vide sale deed dated 30.01.1990 and since then, plaintiff's father was owner in possession of the suit land and after his death, plaintiff is in possession of the suit land as owner. The defendant has no right or concern with the suit property, but he filed Civil Suit No.267 dated 11.06.1990 against plaintiff's father and his vendor seeking relief of permanent injunction. That suit was decided on 01.12.1995. Plaintiff's father was held to be owner in possession of the suit land on the basis of aforesaid sale deed. Appeal preferred by the defendant herein in the said previous suit was also dismissed vide judgment and decree dated 21.09.1998, but still the defendant started threatening the plaintiff to dispossess him from the suit land forcibly and illegally, necessitating the filing of the instant suit. The defendant broadly denied the plaint allegations and pleaded that alleged sale deed dated 30.01.1990 is illegal and null and void and is a sham transaction. Neither vendor nor vendee Baldev Singh was owner or in possession of the suit property nor plaintiff was owner or in possession of the suit property. Defendant claimed himself to be in possession of the suit land. The judgments and decrees passed in the previous suit and first appeal were pleaded to be irrelevant for adjudication R. S. A. No. 4615 of 2010 (O&M) 3 of the present suit and not binding on the defendant-appellant. Various other pleas were also raised. Learned Civil Judge (Junior Division), Anandpur Sahib, vide judgment and decree dated 20.08.2008, decreed the plaintiff's suit. First appeal preferred by the defendant has been dismissed by learned District Judge, Rupnagar, vide judgment and decree dated 25.01.2010. Feeling aggrieved, defendant has preferred the instant second appeal. Along with the appeal, defendant has moved application for additional evidence to place on record sale deed dated 25.06.1957 (Annexure A-4). I have heard learned counsel for the appellant and perused the case file. In so far as application for additional evidence is concerned, the same cannot be accepted because sale deed Annexure A-4, sought to be produced by additional evidence, does not pertain to the suit property comprising of khasra no.143, but pertains to land of other khasra nos. The said sale deed is thus completely irrelevant. Accordingly, application for additional evidence bearing C. M. No. 13687-C of 2010 is dismissed. The said sale deed was not even pleaded in written statement. On merits of the appeal, plaintiff-respondent proved sale deed dated 30.01.1990, whereby plaintiff's father purchased the suit land. On the contrary, there is no documentary evidence on behalf of the defendant- appellant to prove his possession or ownership. R. S. A. No. 4615 of 2010 (O&M) 4 Learned counsel for the appellant vehemently contended that the suit land is situated in abadi deh and defendant is in possession thereof. The contention is completely frivolous and meritless. In previous suit filed by appellant herein for permanent injunction, father of respondent-plaintiff herein was held to be owner as well as in possession of the suit land by the trial court as well as by the first appellate court. In view of said judgment and decree, it does not lie in the mouth of defendant-appellant to contend that he is in possession of the suit land. As regards ownership also, plaintiff has proved his ownership by way of sale deed dated 30.01.1990, whereas defendant is neither owner nor in possession of the suit land. He has no title or concern with the suit land. In addition to the aforesaid, in the previous suit and first appeal, plaintiff's father was held to be owner as well as in possession of the suit land. Plaintiff's father specifically pleaded in that suit that he was owner of the suit land in view of sale deed dated 30.01.1990. The said plea was upheld and plaintiff's father Baldev Singh was held to be owner of the suit land. The said finding is based on sale deed referred to in the instant suit. Learned counsel for the appellant emphatically contended that previous suit filed by defendant-appellant herein was only injunction suit, and therefore, finding regarding ownership cannot operate as res judicata in R. S. A. No. 4615 of 2010 (O&M) 5 the instant subsequent suit. Reliance in support of this contention has been placed on three judgments of Hon'ble Supreme Court namely : Gram Panchayat of Village Naulakha vs. Ujagar Singh reported as 2000 (4) RCR (Civil) 749, Sajjadanashin Sayed Md. B. E. Edr. (D) by LRs vs. Musa Dadabhai Ummer and others reported as (2000) 3 Supreme Court Cases 350 and Williams vs. Lourdusamy and another reported as (2008) 5 Supreme Court Cases 647. The contention cannot be accepted. There is no quarrel with the proposition laid down in the case of Sajjadanashin Sayed Md. (supra) that only finding on a question “directly and substantially” in issue in the previous suit would operate as res judicata in the subsequent suit, but a question “collaterally and incidentally” in issue would not operate as res judicata in the subsequent suit. However, coming to the facts of the instant case, the issue of ownership of Baldev Singh – father of plaintiff-respondent herein, was “directly and substantially” in issue in the previous suit and was also adjudicated upon and Baldev Singh was held to be owner as well as in possession of the suit land. Consequently, said finding operates as res judicata in the instant subsequent suit. Judgment in the case of Gram Panchayat (supra) is not at all applicable because in that case, in the injunction suit, Civil Court was not competent to decide the question of title. It was held that competent authority under the Punjab Village Common Lands (Regulation) R. S. A. No. 4615 of 2010 (O&M) 6 Act, 1961 could determine the said issue of title in the subsequent suit or proceedings being competent Court/Authority. So, judgment in the case of Gram Panchayat (supra) is also not applicable to the facts of the instant case because in the instant case, the previous suit was filed in Civil Court, which was very much competent to determine the question of title, and therefore, finding in the previous suit regarding question of ownership operates as res judicata in the instant subsequent suit. In addition to the aforesaid, independently of the finding of the previous litigation, the plaintiff has led evidence in the instant suit also to prove his title and possession of the suit land, whereas defendant has not led any documentary evidence to depict that he has any right, title or interest in the suit land. Consequently, contention of counsel for the appellant, that the plaintiff has to prove his case independently and cannot take benefit of weakness of defendant, as held in the case of Pal Singh and others vs. Uma Mehta and others reported as 1997 (Suppl.) Civil Court Cases 140 (P&H), cannot be accepted because in the instant case, plaintiff has independently proved his case by leading cogent evidence and also in view of finding in the previous suit, which operates as res judicata in favour of the plaintiff herein. In view of the aforesaid, I find no merit in the instant second appeal. Suit of the plaintiff has been rightly decreed by the lower courts. R. S. A. No. 4615 of 2010 (O&M) 7 Concurrent finding recorded by the courts below does not suffer from any illegality or perversity nor it is based on misreading or misappreciation of evidence. The said finding is fully justified by the evidence on record and does not call for interference in second appeal. No question of law, much less substantial question of law, arises for adjudication in the instant second appeal. Accordingly, the appeal is dismissed in limine. May 19, 2011 ( L. N. MITTAL ) monika JUDGE