IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 221 of 2010. Reserved on : 23.12.2010. Decided on 21.02.2011. _____________________________________________________ Mohar Singh and Others. …Appellants. -Versus- Onkar Singh. …Respondent. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 NO. __________________________________________________________ For the appellants. : Mr. Ajay Kumar, Advocate. For the respondent. : Ms. Madhu Sharma, Advocate vice Mr. Ashwani K. Sharma, Advocate, for the respondent. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: This Regular Second Appeal is directed against the judgment and decree dated 09.04.2010, passed by the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala in Civil Appeal No. 11-K/XIII/2009. 2. Material facts necessary for adjudication of this Regular Second Appeal are that the respondent-plaintiff (hereinafter referred to as “the plaintiff” for convenience sake) instituted a suit for perpetual injunction restraining the appellants-defendants (hereinafter referred to as “defendants” for brevity sake) from causing any interference into his ownership and 1 Whether the reporters of the local papers may be allowed to see the judgment? - 2 - possession in and over the land denoted by Khata No. 15, Khatauni No.38, Khasra Nos. 240, 296, 441, measuring 0-13-87 hects., situated at Mohal Lakha Mandal, Mauza Pathiar, Tehsil and District Kangra, H.P., as per the details given in the copy of Jamabandi for the year 1997-98 (hereinafter referred to as “the suit land” for convenience sake), on the ground that the suit land was owned and possessed by him. He has been cultivating the same. The defendants were strangers to the suit land and have got no right, title or interest therein. 3. The suit was contested by the defendants. On merits, they denied the correctness of the revenue entries showing the plaintiff as owner in possession of the suit land. According to them, initially, the suit land was owned by Smt. Leela Devi, the predecessor-in-interest of the plaintiff. She filed L.R.-V bearing No. 268/75 before the L.R.O. Kangra, but while doing so, she suppressed the fact that she had already resumed the land to the extent of 0-33-59 hects. from Jagat Ram, her tenant and the land measuring 0-24-78 hects. from Shri Sunder, another tenant. Under the provisions of H.P. Tenancy and Land Reforms Act, she could have resumed the land only to the permissible limit of one and a half acre and she had in fact resumed the maximum land to which she was entitled to resume. However, the L.R.O. despite of this fact, passed illegal and void order dated 16.09.1976, whereby he allowed her to resume the suit land. Despite the order dated 16.09.1976, they remained in possession over the suit land and their possession has matured into absolute ownership. 4. Defendants have also filed the counter-claim. - 3 - 5. Plaintiff filed the replication and thereby he reaffirmed and re-asserted the pleadings contained in the plaint. 6. The learned trial Court framed the issues on 05.10.2004. The trial Court decreed the suit of the plaintiff on 25.03.2009 and the counter-claim preferred by the defendants was dismissed. 7. The defendants preferred an appeal before the learned Additional District Judge, Fast Track Court, Kangra at Dharamshala against the judgment and decree dated 25.03.2009. He dismissed the same on 09.04.2010. Hence, this Regular Second Appeal. 8. This Regular Second Appeal was admitted on the following substantial question of law on 01.09.2010: “Whether the two Courts below have wrongly dismissed the plea of the defendants-appellants that they are in possession, on the ground that the same resjudicata, on account of their earlier suit having been dismissed?” 9. Mr. Ajay Kumar, learned counsel for the appellants has strenuously argued that both the Courts below have mis-read the oral as well as documentary evidence. According to him, the judgments and decrees passed by both the Courts below are contrary to the well settled principles of law. 10. Ms. Madhu Sharma, learned vice counsel for the respondent has supported the judgments and decrees passed by both the Courts below. 11. I have heard the learned counsel for the parties and gone through the pleadings carefully. - 4 - 12. Plaintiff had instituted the suit for declaration and injunction. The defendants have filed counter claim and prayed for a decree of declaration to the effect that they were owners in possession of the suit land and the order dated 16.09.1976, passed by the L.R.O., Kangra on LR-V application No. 268/175 filed by Smt. Leela Devi, predecessor-in-interest of the plaintiff was wrong, illegal and void, as according to them, Smt. Leela Devi had already resumed land to the permissible limits of one and half acre from other tenants, namely, Jagat Ram and Sunder and on this strength, they had set-up the plea of title and possession over the suit land. The plaintiff has filed reply to the counter claim. He had raised the plea of resjudicata, on the ground that in view of the decision in the earlier suit, the claim of the defendants was not maintainable. The plaintiff is successor-in-interest of Smt. Leela Devi and the present defendants are successors-in-interest of Smt. Janka Devi. Smt. Janka Devi had earlier filed Civil Suit No. 153 of 1984 in the Court of learned Sub Judge Ist Class, Kangra against the predecessor-in-interest of the present plaintiff. Smt. Janka Devi had prayed for a decree of declaration to the effect that she was in possession as tenant at ‘will’ in respect of the land which is also the subject matter of the present suit. She had challenged the mutation No. 66, dated 30.03.1983, whereby her tenancy had been relinquished in favour of Smt. Leela Devi, the predecessor-in-interest of the plaintiff and on the basis thereof, she had prayed for the consequential relief of perpetual injunction. The learned trial Court has framed eight issues in Civil - 5 - Suit No. 153 of 1984. Out of them, issues No. 1 and 3 were framed as under: “……1) Whether the plaintiff is in cultivating possession as tenant at will over the suit land? OPP. …….3) Whether the mutation No. 66, dated 30.03.1983 is wrong and void as alleged? OPP.” 13. These issues had been decided on merits against Smt. Janka Devi vide judgment dated 28.11.1989. The same was affirmed in appeal by the learned District Judge vide judgment and decree dated 25.11.1991 (Ex. P-4 and Ex. P-5). The Regular Second Appeal preferred against the judgment dated 25.11.1991 bearing No. 156 of 1992 was dismissed by this Court on 08.12.1999. This Court in R.S.A. No. 156 of 1992 had observed that mutation order in the name of Smt. Leela Devi, predecessor- in-interest of the plaintiff had been passed on the basis of resumption order passed by the L.R.O., Kangra. In these circumstances, the judgment dated 28.11.1989 had attained finality. The findings have also been recorded by the competent Civil Court in C.S. No. 153 of 1984 that the predecessor-in- interest of the defendants was not in cultivating possession as tenant at ‘will’ over the suit land and the mutation No. 66, dated 30.03.1983 was legal. The issue which had already been decided by the competent Court of law, has been racked up against by the defendants by way of counter-claim. 14. Ms. Madhu Sharma, learned counsel for the respondent has also argued that though the opportunity was available to the predecessor-in-interest of the defendants Smt. - 6 - Janka Devi, who had filed the suit on 01.06.1984 to challenge the order of L.R.O., dated 16.09.1976, but, she has not chosen to do so. In view of this, the findings have rightly been recorded by both the Courts below that the counter-claim was barred under Section 11 of the Code of Civil Procedure as well as Order 2 Rule 2, C.P.C. The matter in issue in the present lis is the same, which was in issue in the previous suit. The parties were litigating under the same title in respect of the same subject matter. The counter claim preferred by the defendants, in these circumstances, was not maintainable and the findings recorded by both the Courts below are not required to be interfered with. It is also evident from the copy of Rapat Rojnamcha Waquiati, dated 08.01.1992 that the possession of the suit land had been delivered to the plaintiff. The Courts below have come to the just conclusion that the plaintiff was owner in possession of the suit land. 15. Accordingly, in view of the observations and discussions made hereinabove, there is no merit in this Regular Second Appeal and the same is dismissed. No costs. (Rajiv Sharma) Judge February 21, 2011. (bhupender) - 7 -