RSA No. 3767 of 2006(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 3767 of 2006(O&M) Date of Decision: February 22 , 2010 Prem Singh ...... Appellant Versus Mehar Singh and others ...... Respondents Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Vijay Lath, Advocate for the appellant. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against concurrent judgments of the courts below dismissing the suit of the plaintiff-appellant for possession of 75 kanals of land. The admitted facts are that the appellant along with his two brothers inherited 225 kanals of land. During the minority of the appellant one of his brothers sold the entire land in the year 1949. The appellant filed a suit challenging the sale deeds and in the year 1954 ultimately this court upheld the decrees of the Courts below decreeing the suit of the appellant and declaring that the sale deed qua 1/3rd share of the land was invalid and consequently passed a decree for possession of the appellant over 1/3rd of the land in dispute. Thereafter in the year 1994 the appellant filed another suit in which again he wanted a declaration that he was owner to the tune of RSA No. 3767 of 2006(O&M) 2 75 kanals with a consequential relief of possession by way of partition. However, this suit was dismissed as withdrawn on 27.1.1996. No permission was taken to file a fresh suit. It is thereafter that the appellant filed the present suit again praying for possession of some specific khasra numbers in the land in dispute. Both the Courts below have primarily rejected the instant suit on the ground that the plaintiff had also got a decree for possession in the year 1954 and that he had filed a second suit for possession which he had withdrawn without permission to file a fresh suit. Both the Courts have also found that the appellant could not execute the decree and thus was filing repeated suits. However, one of the issues framed was 'whether the appellant was owner of the land in question?' While dismissing the suit on the above two grounds this issue was also found against the appellant. Learned counsel has framed the following questions:- I. Whether the principle of res judicata as well as provisions of Order 23 Rule 1 and 4-B of the civil Procedure Code are applicable, when the suit is based on fresh cause of action? II.Whether there is no limitation to take possession of the land by one co-sharer from the other co-sharers qua his share unless ouster is pleaded and proved for statutory period provided under the Limitation Act? III.Whether it is not incumbent upon the learned First Appellate Court being a court of facts to give its findings on the issues which were challenged, before it in the grounds of appeal as well as in the argument addressed before it? IV.Whether the mis-reading of the pleading and documentary evidence in the light of oral evidence and perversity of finding arrived at by the learned courts below amounts to substantial question of law, which clearly and candidly gives power this Hon'ble Court to interfere? RSA No. 3767 of 2006(O&M) 3 However, the only point argued is that the finding on issue no.1 could not have been returned against the appellant in view of the findings earlier recorded. In my opinion no finding on ownership was required to be given since the suit was liable to be dismissed on the grounds taken by the Courts below. As regards question No. I, learned counsel has not been able to prove the alleged fresh cause of action. Learned counsel has taken me through the findings of Courts below recorded thereon but has not been able to persuade me that the said findings are either based on no evidence or on such perverse misreading of the evidence so as to be liable for interference under Section 100 CPC. As regards question No. II there can be no quarrel with this proposition but the circumstances of the present case are that the appellant had earlier obtained a decree for possession way back in the year 1954 and thus could not file yet another suit after 44 years in 1996. Questions No. III and IV are general questions to which no answer is required. Consequently holding all the questions proposed against the appellant, this appeal as well as the application for stay are dismissed. No costs. Since the main case has been decided, the pending Civil Misc. Applications, if any, stand disposed of. (AJAY TEWARI) JUDGE February 22 , 2010 sunita