IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 372 of 1999. Date of decision: 17.9.2009 Lokinder Singh & ors. …. Appellants Versus Sh.Bhagat Ram and ors. ….. Respondents Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting ? No For the appellants: Shri G.D.Verma, Sr.Advocate with Mr.Romesh Verma, Advocate. For the respondents: Sh.Bhupinder Gupta, Sr.Advocate with Ms.Charu Gupta, Advocate. _____________________________________________________ Deepak Gupta, J.(Oral) This Regular Second Appeal is directed against the judgment of the learned Additional District Judge, Shimla passed in Civil Appeal No.39-S/13 of 1994 decided on 23.4.1999 whereby the appeal filed by the respondent No.1 (hereinafter referred to as the plaintiff) was partly allowed and the judgment and decree passed by the learned Trial Court dismissing the suit of the plaintiff was set aside. Briefly stated the facts of the case are that the plaintiff claimed that he alongwith defendant No.5 Liaq 2 Ram who is his brother had purchased the suit land in the year 1971 from one Sh.Parsu vide a registered sale deed. According to the plaintiff, both of them were in possession of the suit land since then. In October, 1992 the defendants started interfering in the suit land which resulted in the filing of the suit. The defendants contested the suit on various grounds. It was alleged that they are in possession of the suit land for more than 20 years and have become owners of the same by way of adverse possession. During the pendency of the suit, the defendants limited their plea of adverse possession only in respect of 8 biswas of land and did not deny the ownership or possession of the plaintiff over the remaining land measuring 1-2 bighas. The Trial Court held that the plaintiff was not in possession of 8 biswas of land. A decree was granted in favour of the plaintiff only in respect of 1-2 bighas but the suit qua the remaining 8 biswas was dismissed. The grounds which weighed with the learned Trial court were that the plaintiff had failed to show that he was ever put in possession of the suit land pursuant to the sale deed. It was also found that previously a suit had been filed by the plaintiff against the predecessor-in-interest of defendants which 3 suit had abated. The appeal filed by the plaintiff before the learned Lower Appellate Court was allowed. It held that it was the plaintiff who was in possession of the suit land and further held that the suit was not hit by any of the provisions raised by the defendants. Hence the present appeal. This Appeal was admitted on 5.11.1999 on the following questions of Law:- 1. Whether the present suit is barred by the principle of res judicata in view of the earlier decision rendered in the judgment marked as Ex.DW-1/B? 2. Whether the present suit could not have been entertained in view of the bar engrafted under Order 2 Rule 2 CPC? 3. Whether the suit claim is not barred by limitation? 4. Whether findings as recorded by the lower Appellate Court are vitiated on account of mis-reading and mis-appreciation of pleadings of parties as well as oral and documentary evidence on record? 5. Whether the suit was bad for want of impleading all the necessary parties including legal heirs of late Sh.Mohi Ram, Parsu and Pania? 6. Whether possession over suit land measuring 8 biswas has already matured into complete ownership in favour of the present appellants because they and their predecessors have been occupying, possessing, enjoying and 4 holding same adversely to the knowledge of true owners? 7. Whether findings recorded by the learned Addl.District Judge are bad in the eyes of law, on account of placing reliance on evidence which is inadmissible under law? Question No.1: It is urged by Sh.G.D.Verma, learned Senior Advocate that the suit is barred by the principles of res judicata since the earlier suit filed by the plaintiff qua the same suit land was dismissed as abated. He has relied upon the judgment titled Raju v. Ram Chand and others AIR 1933 Lahore 752 and Kamatchi Ammal v. Athigamudaya Pillai and others AIR 1969 Madras 426. Order 22 Rule 9(1) of the CPC reads as follows:- “Order XXII 9. Effect of abatement or dismissal.- (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action.” There can be no quarrel with the preposition of law that once a suit stands abated, no fresh suit on the same cause of action will lie. A perusal of the earlier plaint Ext.DW-1/C filed by the plaintiff against the predecessor in interest of the defendants shows that it is only a suit for permanent prohibitory injunction restraining 5 the father of the defendants from interfering in the suit land. Once the defendant died and his legal heirs were not brought on record, the suit abated. Every attempt to interfere in the suit land creates a fresh cause of action. It is not shown that the present plaintiff was ever dispossessed pursuant to the earlier suit. For reasons best known to the defendants, they have not produced the written statement or the issues framed in the earlier suit. There is no judgment deciding any issue, therefore, res judicata will not apply. The suit would also not be barred under Order 22 Rule 9 because it is based on a new cause of action and not on the same cause of action. Question No.2: The appellant cannot be permitted to raise this plea since the plea that the suit was barred under Order 2 Rule 2 was not raised earlier either in the pleading. No issue in this regard was framed. Even otherwise, Order 2 Rule 2 only provides that no fresh relief can be claimed which could have been claimed in the earlier suit. This order has no applicability to the facts of the present case. Question No.3: With regard to the limitation, a specific issue being issue No.6 was raised before the learned Trial Court. 6 This issue was not pressed by the defendants and, therefore, they cannot be permitted to raise this plea at this stage. Even otherwise, the suit is within limitation since it is alleged that the defendants interfered in the possession of the plaintiff in 1992 and the suit was filed immediately thereafter. Question No.5: There is no pleadings regarding this issue and, therefore, this question of law does not arise. Even otherwise according to the plaintiff, he had purchased the land from Parsu. Pania was shown to be in possession of the land as tenant. The defendants do not claim that they have acquired the land from Pania. The only claim adverse possession. Therefore neither Pania nor any of the other parties are necessary parties to the suit. Questions No.4,6 and 7: These questions are in fact more in the nature questions of fact rather than questions of law. It may be mentioned that admittedly Parsu sold the land vide registered sale deed in favour of the plaintiff and defendant No.3. They have been shown to be owners in possession of the suit land measuring 1-10 bighas in Ext.PW1/B to Ext. No.PW1/E. These are the jamabandis for 7 the year 1975-76 and 1986-87. Ext.PA is the Jamabandi for the year 1991-92 wherein also the same position is reflected. Presumption of truth is attached to the revenue authorities. According to the defendants, no reliance can be placed on these entries since at the time of mutation; the name of Pania was reflected to be in possession. It is contended that the possession was never transferred in favour of the plaintiff. This stand of the defendants is belied by their admission before the learned Trial Court that the plaintiff is in possession over 1-2 bighas of land and the defendants are in possession of 8 biswas of land. It is proved on record that 1-10 biswas was sold. The plaintiff naturally must have occupied the whole land and would not have occupied the portion thereof. This is a pure finding of fact which cannot be interfered in second appeal. In view of the above discussion, I find no merit in the appeal which is accordingly dismissed. All the questions of law are answered accordingly. September 17, 2009 ( Deepak Gupta ) (m) Judge