IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No.536 of 2001. Date of decision: 18.07.2011. Longu Ram … …Appellant Versus Ram Rakha & Another … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 No. For the Appellant: Mr.Sanjeev Kuthiala, Advocate. For the Respondents: Mr.N.K. Thakur, Advocate. Dev Darshan Sud,J. This appeal has been preferred by the plaintiff against the concurrent findings of the two Courts below dismissing his suit for declaration to the effect that he is the owner in possession of the land measuring 0-00-32 Hectares comprising in Khewat No.13 min, Khatauni No.41 min, Khasra No.34, per Missalhaquiat Bandobast for the year 1986-87, situated in village Karar Behar, Tehsil Amb, District Una, on the basis of compromise Ex.PX and order dated 24.9.1996 passed by learned Sub Judge(1), Amb, in the execution petition between the parties to this appeal. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. The suit was resisted by the respondents- defendants on the question of maintainability, estoppel etc. It was admitted that a compromise in fact had been arrived at between both the parties and that they are in possession of the respective portions of land allotted to them. 3. The learned trial Court settled six issues on the pleadings of the parties. The first issue related to the determination of the important point as to whether the plaintiff is the owner in possession of the suit land. The second issue was as to whether the revenue entries in favour of the respondents as owner in possession are illegal and contrary to the compromise dated 24.9.1996. The third issue related to the question of maintainability of the suit. All these issues were tried together and held against the plaintiff. 4. The learned trial Court holds that the admitted case of the plaintiff is that in the execution petition land underneath shops and Khurli of plaintiff was in fact land of defendants who were decree holder in Civil Suit No.280/86. The learned Court holds that it was the case of the plaintiff that the land belonged to the defendants, which was found in demarcation in Execution Petition No.36/94 (Ex.P-2), and that he was the Judgment Debtor in that case. Ex.PW-1/A is a compromise entered into between the parties where the plaintiff accepted his illegal possession on the part 3 of Khasra No.18 belonging to the defendants which has now been assigned Khasra Nos.33, 34 during the settlement. 5. The Court referred to paragraph-4 of the compromise according to which entire controversy between the parties has been resolved as it has been clearly stated therein that the Decree Holder will be the owner of the Khasra No.34. According to the learned Court, the plaintiff now seeks to take advantage of some confusion in the revenue entries. Accordingly, the Court dismissed the suit. Appeal preferred against this decision in the Court of learned District Judge, was dismissed after re-consideration of the entire evidence afresh in accordance with law. 6. The learned appellate Court holds that the previous suit between the parties had been filed in the year 1986 on the basis of old revenue record and the compromise was entered into in 1996 after the preparation of the Misalhaquiat of the year 1986-87. Settlement took place after the institution of the previous suit. But during settlement operation, Khasra No.33 was carved out of old Khasra No.18 min and was shown to be in the shape of a Gair Mumkin Road in possession of the Public Works Department which is evident by Ex.P-5. The learned appellate Court holds that the plaintiff is taking advantage of these wrong entries with respect to Khasra No.33 in the revenue papers which error seems to have crept in the new 4 settlement operation. The Court is emphatic in its findings that once the correctness of the compromise Ex.PW-1/A has been accepted, it is not open to the plaintiff to urge that he has nothing to do with Khasra No.33 which is in the possession of Public Works Department. The Court holds that Khasra No.34, for which he has no right according to the compromise, could not now be claimed by the plaintiff. 7. This appeal was admitted on the following substantial questions of law:- “1. Whether a compromise entered into between the parties in a separate suit under the provisions of order 23 Rule 3 CPC, which has attained finality, can be made a basis of determining the rights of the same parties in another suit? 2. Whether the material failure to decide the application under order 41 Rule 27 CPC and consider the subsequent settlement revenue record and all relevant material necessary for proper adjudication has resulted in the judgment suffering from infirmity and can be made a basis for remand and re- consideration with reference to the material on record. 3. Whether in a case where there is a dispute regarding boundaries, it is necessary for proper adjudication to get demarcation in accordance with the H.P. High Court Rules & orders and the standing instructions of the Financial 5 Commissioner and the decision without proper demarcation is bad in law?” Question No.1: 8. Adverting to the first question, it does not require any answer. The Court holds that Ex.PW-1/A is a valid compromise between the same parties with respect to the same land regarding which the plaintiff has instituted the second suit. In these circumstances, the question begs itself. Questions No.2 & 3: 9. Having considered the findings of fact arrived at by both the Courts below, more especially, that Khasra No.34 is not and cannot be claimed by the plaintiff as his ownership and possession of this Khasra already stood determined in a previous suit being Ex.PW-1/A arrived at between the same parties in execution proceedings arising out of a Civil Suit between the same parties with respect to the same land, the question of demarcation did not arise at all. Creating confusion, on the basis of some alleged revenue record, does not grant a right to the plaintiff to agitate and re-agitate the same cause over and over again in a different manner. The plaintiff already had the advantage of litigating on the same point with the aid of the same principles of law in the previous suit which has now attained finality and is now res judicata between the parties. The application under Order 41 6 Rule 27 of the Code of Civil procedure is nothing but a ruse to reopen the same settled question which has attained finality and this cannot be permitted. There is also no question regarding wrong boundaries of the land. Both these questions are, therefore, decided against the plaintiff. 10. This appeal is accordingly dismissed with the further direction that the plaintiff shall not be dispossessed from that portion of land which according to the compromise belongs to him. He shall further not be dispossessed from the land which is under his shop. Appeal dismissed. 11. All interim orders are vacated. All miscellaneous applications are disposed of. July 18, 2011. (Dev Darshan Sud) (aks) Judge.