R.S.A. No. 227 of 1986 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH R.S.A. No. 227 of 1986 (O&M) Date of decision : 30.7.2010 ... Mohan Lal ................Appellant vs. Jagdish and another .................Respondents Coram: Hon'ble Mr. Justice K.C. Puri Present: Sh. Ajit Malik, Advocate for the appellant Sh.O.P. Sharma, Advocate for the respondents. ... K.C. Puri, J. This is an appeal directed by plaintiff-appellant against the judgment dated 4.10.1985 passed by Sh. Krishan Kant Aggarwal, Additional District Judge, Rohtak, vide which the appeal preferred by the plaintiff-appellant against the judgment dated 5.5.1984 passed by Sh. V.P. Bishnoi, Sub Judge II Class, Jhajjar, District Rohtak, was dismissed. Briefly stated, plaintiff-Mohan Lal filed a suit for possession with the allegation that suit land was Nazool land and was owned by the Provincial Government. In the year 1955, the Co-operative R.S.A. No. 227 of 1986 -2- Society of Harijan was allotted the suit land alongwith other land. Plaintiff is member of said society. The plaintiff was allotted the suit land alongwith other land by the Provincial Government and various members were put in possession of specific portion of agriculture land. The plaintiff has been in cultivating possession of the suit land and other land since 1955. The plaintiff has deposited the requisite installments. The defendants forcibly entered into the possession of the suit land. Hence the suit. Defendants appeared and filed two separate written statements, but on the same lines. It is mentioned that plaintiff is neither the owner nor in possession. The controversy has already been decided in civil suit No. 109 of 1974 and appeal No. 128/13 of 1978. Further the case of the defendants is that the suit land was in cultivating possession of Jeewan son of defendant No.2 for the last 28-29 years upto year 1973 and thereafter, defendant No.2 is cultivating the suit land with the help of defendant No.1 who happened to be the daughter's son of defendant No.2. The defendants have become owner in possession of the suit property by way of adverse possession pleading the ingredients of adverse possession. All other averments of the plaint have been denied. The plea of res judicata has been taken. Replication was filed re-affirming the plaint and controverting the written statements. From the pleadings of the parties, following issues were framed:- 1. Whether the plaintiff is the owner of the suit land? OPP. R.S.A. No. 227 of 1986 -3- 2. Whether the defendant No.2 is owner in possession of the suit land? 3. Whether the judgment in civil suit No. 109 of 1974 titled as Mohan Lal vs. Nihali dated 2.2.1978 averment in appellate judgment dated 2.1.1979 operates as res judicata in the present case? OPD 4. Whether the plaintiff has no locus standi to file the present suit? OPD 5. Whether the suit is time bared? OPD 6. Whether the defendants have become owner of the suit land by way of adverse possession as alleged in the additional objection No.4 in the written statement? OPD 7. Whether the defendants are entitled to special costs u/s 35- A CPC? OPD 8. Relief. The plaintiff examined PW-1 Sant Ram, Registration Clerk, PW-2 Vir Bhan, D.R.A., PW-3 Hira and PW-4 Mohan Lal and closed the evidence after tendering certain documents. In rebuttal, Nihali appeared as DW-1 and also examined DW-2 Tale, DW-3 Jagdish and closed the evidence. Learned trial Court has taken up issues No. 1, 2 and 6 together and all these issues were decided in favour of the defendants and against the plaintiff. Issues No. 3 and 4 were also decided in favour of the defendants and against the plaintiff. Issues No. 5 and 7 were not pressed before the trial Court and hence these issues were decided accordingly. In view of the findings on the issues, the suit of R.S.A. No. 227 of 1986 -4- the plaintiff was dismissed. Feeling dissatisfied with the judgment dated 5.5.1984 passed by Sh. V.P. Bishnoi, Sub Judge II Class, Jhajjar, District Rohtak, the plaintiff preferred the Ist appeal, which was heard by Sh. Krishan Kant Aggarwal, Additional District Judge, Rohtak, and vide judgment dated 4.10.1985, the appeal of the plaintiff was dismissed. Feeling dissatisfied with the judgments dated 4.10.1985 and 5.5.1984, referred to above, the plaintiff-appellant has preferred the present regular second appeal. Learned counsel for the appellant has submitted that the trial Court has returned the finding that previous judgments operate as res judicata. It is submitted that the land was allotted to the appellant in the year 1979 and as such the previous judgments cannot operate as res judicata. The plea of adverse possession taken by the defendants has been wrongly accepted by both the Courts below. The adverse possession would start from 1979 onwards and not prior to that. However, when the counsel for the appellant was asked what substantial question of law has arisen, counsel for the appellant was fair enough to concede that he could not find any substantial question of law. In this case, plaintiff claims himself to be the owner of the suit land comprised in rect. No. 6, Killa No.13 (min Bast) 4-0. The plaintiff earlier filed civil suit No. 220 of 1971 for permanent injunction, which was ultimately dismissed vide judgment dated 29.5.1972 passed by Sh. B.R. Gupta, HCS Sub Judge II Class, Jhajjar (Rohtak). In the said case, following issues were framed:- R.S.A. No. 227 of 1986 -5- 1. Whether the plaintiff is the owner and in possession of the land in suit? OPP 1-A. If issue No. 1 is not proved, whether the defendant is in possession as a tenant? OPD 2. Whether the plaintiff is entitled to the relief claimed for? OPP 3. Relief. While returning the finding on these issues, the trial Court held that plaintiff – Mohan Lal is neither the owner nor in possession of the suit property. It is also held that defendant Jeewan is in possession of the suit property as tenant. Thereafter, the plaintiff again filed suit for possession vide civil suit No. 109 of 1974 and that suit was also dismissed. The plaintiff filed appeal against that judgment and the same was also dismissed vide judgment dated 2.1.1979. The trial Court in the present case has given a categoric finding that defendants have become owner of the suit property by way of adverse possession, as their possession is continuous to the possession of Jeewan son of defendant No.2. The Ist Appellate Court has also confirmed the said finding. So, there is concurrent finding of both the Courts below that defendants have become owners of the suit property by way of adverse possession and that plaintiff has failed to prove his ownership in respect of the suit property. Further both the Courts below have given a concurrent finding that previous judgments operate as res judicata as the plea of ownership of the plaintiff has been decided between the parties. So, those being a R.S.A. No. 227 of 1986 -6- finding of fact, cannot be interfered in the regular second appeal, more so, when no substantial question of law has arisen. The argument advance by counsel for the appellant to the effect that since the property was allotted in the year 1979 and as such the suit is well within its limitation in the year 1982, is concerned, that aspect has already been dealt by the Ist Appellate Court, holding that the allotment letter is simply an additional evidence. Previously also, the appellant claimed himself to be owner in possession, but in the previous two judgments, the plaintiff has not been held as owner of the suit property. So, in view of the above circumstances, the appeal is without any merit and the same stands dismissed with costs. Decree sheet be prepared. ( K.C. Puri ) 30.7.2010 Judge chugh