IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No. 4001 of 2008 Date of Decision : August 28, 2009 Singh Ram and others .....Appellants Versus Mam Chand and others .....Respondents CORAM : HON'BLE MR JUSTICE T.P.S. MANN Present : Mr. J.S. Cooner, Advocate T.P.S. MANN, J. Sahib Devi, Norati Devi and Barhmi Devi, daughters of Ratti Ram, had filed a suit against the respondents for possession, as owners, in equal shares, interse of 3/4th share, measuring 18 kanals 15 marlas out of land measuring 25 kanals 0 marla and 3/4th share out of half share of total land measuring 1 kanal 8 marlas. They also sought declaration that the judgment and decree dated 5.12.1985 passed by Senior Sub Judge, Ambala in civil suit No. 113 of 1985 titled as ‘Mam Chand and another Versus Ratti Ram’ was null, void, illegal, based on misrepresentation and fraud, inoperative, ineffective and not binding on the rights, title and interest of the appellants. Consequential relief of permanent injunction was also sought against respondents No.1 and 2 from alienating, encumbering or transferring the suit land in any manner, whatsoever, and from cutting and removing the trees standing on the suit land. The suit was, however, dismissed by learned Additional Civil Judge (Senior Division), Ambala on R.S.A. No. 4001 of 2008 -2- 16.10.2007 which judgment and decree was upheld by learned District Judge, Ambala on 1.5.2008 in the first appeal filed by plaintiff Norati Devi and legal representatives of plaintiff Sahib Devi and Barhmi Devi. They are now before this Court in a second appeal filed under Section 100 of the Code of Civil Procedure. Admittedly, Ratti Ram was the original owner in possession of the suit land. He had no male issue and had four daughters, i.e. Sahib Devi, Norati Devi and Barhmi Devi-plaintiffs in the present suit, besides Piari Devi-defendant No.3. These four daughters became his legal heirs after his death. On 5.12.1985, Ratti Ram had suffered a decree in the suit titled ‘Mam Chand etc. Versus Ratti Ram’ in favour of Mam Chand and Ram Kumar, defendants No.1 and 2, respectively. The said decree was challenged by the plaintiffs by filing Civil Suit No.42 of 1991 as having been obtained by defendants No.1 and 2 in connivance with defendant No.3. Civil Suit No. 42 of 1991 was decreed on 27.1.1997 and the judgment and decree dated 5.12.1985 was held illegal, null and void, the same being against the provisions of the Transfer of Property Act and the Registration Act. According to the plaintiffs, in the present suit, they were entitled to 3/4th share in the suit property being daughters of Ratti Ram and, accordingly, requested defendants No.1 and 2 to recognize their rights of ownership to the extent of 3/4th share to the suit land and hand over the possession of the same. Defendant No.3, being fourth daughter of the appellant and sister of the plaintiffs, was entitled to remaining 1/4th share. When defendants No.1 and 2 refused to yield to their request, it gave them R.S.A. No. 4001 of 2008 -3- the cause of action to file the present suit. According to the defendants, the suit property was transferred in favour of defendants No.1 and 2 by virtue of the decree dated 5.12.1985 but it was done with the consent and agreement of the plaintiffs and defendant No.3. Therefore, the present suit filed by the plaintiffs was false and frivolous. They, accordingly, prayed for its dismissal. After hearing learned counsel for the parties and going through the evidence brought on the record, the learned trial Court held that judgment and decree dated 5.12.1985 passed in Civil Suit No.113 of 1985 titled as ‘Mam Chand and another Versus Ratti Ram’ already stood declared as illegal, null and void, vide judgment Ex.P3 passed on 27.1.1997 in Civil Suit No.42 of 1991 titled ‘Sahib Devi and others Versus Mam Chand’. However, the judgment dated 27.1.1997 (Ex.P3) was held to operate as res judicata to the present suit filed by the plaintiffs. While holding so, learned trial Court observed that as per Order 2 Rule 2 of the Code, a suit was required to include whole of the claim and in case a plaintiff omitted or relinquished a part of the claim, he cannot sue afterwards in respect of the portion so omitted or relinquished. As the plaintiffs omitted to sue for the suit property in the present suit while filing Civil Suit No.42 of 1991, they could not sue in respect of the portion of the land so omitted by filing the present suit. They had also not taken any leave of the Court to sue for the relief prayed for in the present suit. Accordingly, the plaintiffs were held not entitled to relief of possession and permanent injunction. R.S.A. No. 4001 of 2008 -4- It may not be out of place to mention here that the judgment and decree dated 27.1.1997 was challenged by defendants No.1 and 2 by filing an appeal, which was dismissed by the appellate Court and, thereafter, confirmed by the High Court in R.S.A. No.2017 of 1998. In Civil Suit No.42 of 1991, the plaintiffs had challenged the judgment and decree dated 5.12.1985 to the limited extent of part of property decreed in favour of defendants No.1 and 2. The relief was restricted to 3/4th share in the land measuring 15 marlas. The plaintiffs did not challenge the judgment and decree dated 5.12.1985 sufferred by Ratti Ram in respect of the entire property. Order 2 Rule 2 of the Code requires the plaintiff to include, while filing the suit, whole of the claim to which he is entitled to and where he relinquishes any portion of his claim or omits to sue in respect of a portion of his claim, he cannot be allowed afterwards to sue in respect of the portion so omitted or relinquished. It has been made incumbent upon the litigant to raise all possible grounds and claim all the reliefs at the time he files the suit. He could not ask for piecemeal trial of issues on different occasions. Such a litigant may sue for all or any of such reliefs which he omitted to sue in his earlier suit, but that is to be allowed only with the leave of the Court, which he was to plead for in his earlier suit. Learned lower appellate Court, while dismissing the appeal of the plaintiffs, also held that the suit was barred by limitation. Decree dated 5.12.1985 is the subject matter of the present suit. According to the plaintiffs the cause of action arose to them on 2.5.1989 when Ratti Ram R.S.A. No. 4001 of 2008 -5- died. Limitation to set aside a decree is three years. As the present suit had been filed on 11.12.1997, it was also barred by limitation. In view of the above, it cannot be said that the findings arrived at by the learned Courts below suffer from any illegality or infirmity. These findings were based upon proper appreciation of the evidence and application of the provisions of law. These findings are immune from challenge in a second appeal, which is maintainable only on some substantial question of law and not otherwise. The various substantial questions of law formulated by the appellants, do not arise for determination. Resultantly, the appeal is hereby dismissed in limine. ( T.P.S. MANN ) August 28, 2009 JUDGE satish Whether to be referred to the Reporters : YES / NO