Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 37 of 2004 Swami Guru Prasad Chela Swami Janardan, Purnanand Yog Ashram, Laxman Jhula through Sri Ratan Gupta, S/o Manu Lal Gupta, R/o Purnanand Yog Ashram, Laxman Jhula, District Pauri Garhwal. …………..Plaintiff/Appellant. Versus (1) Bachan Singh Pokhariyal (2) Chandra Veer Singh Pokhariyal (3) Ramesh Pokhariyal All Sons of Sri Natha Singh Pokhariyal, R/o Kailash Gate, Muni Ki Reti, Tehri Garhwal (4) Aradhana Builders Pvt. Ltd. Registered office: Pushkar Mandir Marg, Shanti Market, Rishikesh. ..………Defendants/Respondents. Sri Arvind Vashistha, Advocate for the Plaintiff / Appellant. Sri B.P. Nautiyal, Advocate for the Defendants / Respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred as C.P.C.), is directed against the judgment and decree dated 31.12.2003, passed by District Judge, Tehri Garhwal, in Civil Appeal No. 6 of 2002, whereby said court has affirmed the judgment and decree 2 dated 02.11.2002, passed by Civil Judge (Senior Division), Tehri Garhwal, in Civil Suit No. 1 of 1999. (2) Heard learned counsel for the parties. (3) Brief facts of the case are that plaintiff / appellant instituted a suit for injunction before the trial court, praying that defendants be restrained from interfering with the possession of the plaintiff / appellant over the land in dispute. It is pleaded in the plaint by the plaintiff / appellant that land in suit measuring 300 Nalies (15 acres approximately) situated in Muni Ki Reti (District Tehri) near Rishikesh was given on lease to the plaintiff by the Government of Uttar Pradesh on 04.04.1963 for a period of 30 years with a clause of renewal therein. Plaintiff / appellant opened a school in the land and got the constructions made therein. Plaintiff has further pleaded that on 04.04.1993 the lease was renewed for a further period of 30 years. Claiming that the plaintiff is in possession of the land in suit and defendants intend to interfere with the possession of the plaintiff, the suit was instituted. (4) The defendants contested the suit and filed their written statement in which it is stated that the plaintiff out of 300 Nalies of land made constructions only over 48 Nalies for running the school. As such, in respect of rest of land lease was cancelled by the Government in the year 1974. The defendants have further pleaded that concealing the fact of cancellation the plaintiff got renewed the lease of entire 300 Nalies. Defendants’ case is that out of the land in suit, land of Plot 3 (Khasra) No. 20/1 and 20/2 was allotted to the defendants after the lease given in favour of the plaintiff was cancelled. It is further pleaded by the defendants that the defendants got converted the lease land into free hold land in the year 1996-97 and since then the defendants are owner in possession over the land of Khasra No. 20/1 and 20/2. Alleging that the plaintiff illegally with intention to grab the entire 300 Nalies of land filed this suit. A legal plea is also raised that the suit is not maintainable for the reason that earlier the plaintiff’s predecessor-in-title filed Original Suit No. 3 of 1975 and said suit was dismissed on 11.04.1975. Finally, it is pleaded that the plaintiff is in possession over not more than 48 Nalies of land out of the 300 Nalies claimed by him and the same was found to be so in the inquiry of Sub Divisional Magistrate. (5) On the basis of the pleadings of the parties, the trial court framed following issues:- (i) Whether the defendants have encroached upon or intending to encroach upon over the land leased out to the plaintiff? If so its effect? (ii) Whether plaintiff illegally got renewed the lease over the land in suit, details of which are given at the foot of the plaint? (iii) Whether the plaintiff is the lessee in possession of the disputed land and has right to maintain the suit? 4 (iv) Whether the allotment / lease of disputed land in favour of the plaintiff is illegal? If so its effect? (v) Whether the suit between the predecessors- in-title of the parties to the present suit bearing Suit No. 3 of 1975 was dismissed? If so, is the present suit not maintainable, as alleged in the written statement? (vi) Whether the suit is under valued and court fee paid is insufficient? (vii) Whether the defendants have raised constructions over the land in dispute as alleged in their written statement? If so its effect? (viii) To what relief, if any, the plaintiff is entitled? (6) After recording the evidence and hearing the parties, the trial court found that the renewal of lease in favour of the plaintiff was valid except in respect of 50 Nalies of land regarding which before the renewal, allotment had already been made in favour of the defendants. In respect of 50 Nalies of land it was further held by the trial court that since the plaintiff is not in possession over said piece of land, as such the suit for injunction to that extent is not maintainable. It is further held by the trial court that the subsequent suit is not maintainable after Suit No. 3 of 1975, between the predecessors-in-title of the parties to this suit, was dismissed. The present suit was also held to be barred by provisions of Rule 9 Order IX of C.P.C.. Lastly, it is held that the 5 constructions of the defendants over the land allotted to them were yet not complete. As far as finding on issue no. 6 was concerned, it was decided as a preliminary issue on 18.02.2002. With above findings, the suit was dismissed with costs on 02.11.2002. Aggrieved by said judgment and decree dated 02.11.2002, passed in Civil Suit No. 1 of 1999, by Civil Judge (Senior Division), Tehri Garhwal, Civil Appeal No. 6 of 2002 was preferred by plaintiff before the District Judge, Tehri Garhwal, under Section 96 of C.P.C., which was dismissed on 31.12.2003 passed by said first appellate court. Hence this appeal. This second appeal was admitted on 26.03.2004 on substantial questions of law no. 2 and 3, suggested in the memorandum of appeal. The same read as under:- (A) Whether courts below were justified in dismissing the suit while plaintiff had successfully proved that the disputed land was not part and parcel of the lease given in favour of the defendants / respondents and the same was part and parcel of the land included in the lease and given in favour of the plaintiff / appellant. (B) Whether the courts below were justified in holding that the suit is barred by Order IX Rule 9 of C.P.C. ignoring that the earlier suit was based on different cause of action, and dismissed in default on a date which was not fixed for hearing. 6 (7) Answer to substantial questions A and B:- It is not disputed between the parties that in the year 1963 a lease was executed in favour of the plaintiff’s predecessor-in-title in respect of 300 Nalies of land. It is also not disputed that in the year 1974, the lease in favour of the plaintiff was cancelled. However, the lease was got renewed in the year 1993 for a further period of 30 years. There is concurrent finding of fact of the courts below and this Court also found it true that after the lease given to the plaintiff was cancelled in the year 1974 and before the renewal was made in the year 1993, out of 300 Nalies land of Khasra (Plot) No. 20/1 and 20/2 was allotted in favour of the defendants’ predecessor-in-title, who became the lessee of said piece of land. It is also proved on record and found by both the courts below that defendants were in possession over the piece of land which was allotted to their predecessor-in-title, as such this Court does not find any error of law committed by the trial court in dismissing the suit and affirming the same by the lower appellate court to the extent of the piece of land defendants were in possession. However, having gone through the record of the case and after hearing the parties, this Court is of the view that both the courts below erred in law in not decreeing the suit in respect of the remaining land in suit over which plaintiff had its possession, who is admittedly running a school known as Purnanand Inter College. (8) Admittedly, Suit No. 3 of 1975 was instituted by Swami Janardan Parmahans, predecessor-in-title of the plaintiff Swami Guru Prasad against Natha Singh (predecessor-in-title of the 7 present defendants / respondents no. 1 to 3) and others. From the certified copy of the plaint of said suit, which is part of the record in the suit out of which this appeal has arisen, it is clear that Suit No. 3 of 1975 was only in respect of land measuring 323 ft. X 290 ft. and not whole of 300 Nalies of land, which was subject matter in dispute of Suit No. 1 of 1999 (out of which this appeal has arisen). The cause of action in Suit No. 3 of 1975 is pleaded to have arisen in December 1974 as is apparent from the plaint of said suit while the plaint of Suit No. 1 of 1999 shows that cause of action of this suit has arisen on 14.11.1998, after the defendants allegedly started raising constructions (on the land other than allotted to them). As such, where the dismissal of earlier suit in default of plaintiff in respect of 323 ft. X 290 ft. of land, detailed in the foot of the plaint of Suit No. 3 of 1975 bars the subsequent suit in respect of said piece, but in respect of remaining land it cannot be said that dismissal of Suit No. 3 of 1975 has similar effect. Rule 9 of Order IX C.P.C. precludes a plaintiff from bringing fresh suit only in respect of same cause of action on which the earlier suit was instituted. Therefore, in the above circumstances, this Court is of the view that the dismissal of Suit No. 3 of 1975 makes present suit not maintainable only in respect of the land measuring 323 ft. X 290 ft. and not in respect of remaining land. (9) Sri Arvind Vashistha, learned counsel for the plaintiff / appellant argued that the date on which the earlier suit was dismissed in default was not the date of hearing as such dismissal of suit on said date on account of default of plaintiff 8 cannot bar the fresh suit. However, having gone through the record, I found that 11.04.1975 was the date fixed for framing issues in Suit No. 3 of 1975. Said date was fixed by the trial court on 22.02.1975. It is settled principle of law that ‘date of framing of issues’ is a date of hearing. (10) For the reasons as discussed above, the substantial questions of law A and B stand answered accordingly. (11) Having heard learned counsel for the parties and after going through the entire lower court record, this Court affirms the part of decree passed by the trial court and lower appellate court to the extent of land of which lease was given to the defendants over which they were in possession, but the dismissal of suit and its affirmation in respect of remaining part of land is liable to be set aside and the same is set aside. The suit is decreed in respect of the portion of the land in suit regarding which neither the defendants are allottee nor were they in possession on the date of institution of suit. To that extent injunction restraining the defendants from interfering in possession of the plaintiff over that part of land is granted. Accordingly, appeal stands disposed of. No order as to costs. (Prafulla C. Pant, J.) 06.08.2008 NS