RSA No.1295 of 1984 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.1295 of 1984 Date of Decision: 3.02.2010 Gurdev Singh ..Appellant Vs. Data Ram & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.G.S.Jaswal, Advocate, for the appellant. Mr.O.P.Hoshiarpuri, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. (Oral) This appeal by the defendant/appellant is directed against the judgment and decree dated 21.4.1984 passed by the learned Additional District Judge, Hoshiarpur vide which suit filed by the RSA No.1295 of 1984 2 plaintiffs/respondents No.1 to 4 for possession of Taur shown in red colour marked by letters ABCEH in the site plan stands decreed partly. Plaintiff/respondents filed a suit against the appellant/defendants for possession of Taur shown in the site plan attached with the plaint situated in abadi of village Sasoli, Tehsil and District Hoshiarpur. The Taur in dispute was said to be owned and possessed by Gurdial son of Sital ancestor of the plaintiffs and defendants No.2 to 11 as per Khana Shumari Register prepared in 1852. The plaintiffs and defendants No.2 to 11 inherited the taur in dispute from their forefathers. Defendant No.1 purchased taur No.13 min (5½ marlas), which is situated on the western side of the taur in dispute on 9.3.1973 from Rehabilitation Department. The plaintiff/respondents had also filed a suit for permanent injunction which was dismissed as no encroachment was detected to have been made by defendant No.1 i.e. the appellant out of the taur of the plaintiffs and defendants No.2 to 11. It was pleaded that defendant No.1 admitted the ownership of the plaintiffs and defendant Nos. 2 to 11 over the disputed taur. Defendant No.1/appellant was said to have constructed a kitchen, and a boundary wall over the site in dispute by taking forcible possession of the taur two months prior to filing of the suit. On the request of the plaintiffs, the appellant refused to vacate the taur, hence the suit was filed seeking possession. The suit was contested by appellant/defendant No.1 by pleading that the site plan filed by the plaintiffs was incorrect. Earlier suit RSA No.1295 of 1984 3 filed by the plaintiffs regarding the same site was dismissed on 27.5.1977 and appeal filed against the judgment and decree was also dismissed on 4.9.1980. The suit was, thus, barred by principles of res judicata. Suit was also said to be barred by time. On merit, it was pleaded that the ancestors of the plaintiffs and defendants No.2 to 11 were not the owners. The plaintiffs were also not owners of the site in dispute, as already held in the previous suit. The defendant/appellant has raised construction over the site in dispute and was in possession of the site for the last more than 12 years. Ownership of the plaintiffs over the site in dispute was not admitted. Defendants No. 2 to 11 did not contest the suit and were proceeded against ex parte. In the replication, averments made in the plaint were reiterated and those made in the written statement were denied. On the pleadings of the parties, learned trial court framed the following issues:- 1. Whether the plaintiffs and defendants No.2 to 11 are the owners in possession of the Taur in dispute? OPP 2. Whether the present suit is barred by principles of res judicata?OPD 3. Whether the suit is within time? OPP 4. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 4. Relief. RSA No.1295 of 1984 4 Learned trial court on appreciation of evidence, on issue No.1, came to the conclusion that the plaintiffs and defendants No.2 to 11 were not owners in possession of taur in dispute, as they failed to prove their ownership at any point of time. The learned trial court recorded this finding by relying on the findings in the previous suit filed by the plaintiff/respondents. In which plaintiff / respondents had claimed ownership and possession on the basis of entries in Khana Shumari register at Sr.No.25. Report of the local commissioner appointed in the suit was also taken into consideration, wherein it was held that the defendant/appellant was in possession of the area measuring 5½ marlas, and further that the plaintiffs had failed to prove the exact area of their property. Issues No.1 and 2 in the previous suit were decided against the plaintiff/respondents. In view of the finding recorded in previous suit learned trial Court held on issue No.2, that the suit was barred by principles of res judicata, as the dispute raised in the suit was decided against the plaintiff/respondents in the previous suit. On issue No.3, it was held by the learned trial court that the plaintiff/respondents failed to prove their ownership and possession over the disputed taur in the last 12 years therefore, the suit was held to be barred by limitation. The defendant/appellant was held to have perfected his title by way of adverse possession. Issue No.4 was decided in favour of the plaintiffs, as no arguments were addressed on this issue. RSA No.1295 of 1984 5 In view of the findings recorded, the suit filed by the plaintiff/respondents was ordered to be dismissed. Plaintiff/respondents preferred an appeal. Learned lower appellate court did not discuss the findings issue-wise, but came to the conclusion that the appellant/defendant was only entitled to possession over 5½ marlas of land purchased by him, whereas the plaintiff/respondents could claim possession over balance taur by leaving 5½ marlas of area which was purchased by the defendant from Rehabilitation Department. The learned lower appellate court also held that the learned trial court had wrongly held the suit to be barred by the principle of res judicata, for the reasons that in Ex.D.1, Gurdev Singh appellant was shown to be owner in possession of 5½ marlas purchased from the Rehabilitation Department and that the suit was dismissed on the ground, that the plaintiffs had failed to prove encroachment. The learned lower appellate court thus came to the conclusion that the dispute in the present suit was, whether the area in dispute formed part of 5½ marlas, which was to be excluded. As no clear-cut finding was given in this regard, therefore, previous judgment inter se between the parties could not operate as res judicata. Appeal was partly allowed, and the suit of the plaintiffs was decreed, qua land which could be said to be in excess of 5 ½ marlas with defendant / appellant. Mr. Gurdial Singh Jaswal, learned counsel appearing on behalf of the appellant contends that the appeal raises the following substantial questions of law for consideration by this court:- RSA No.1295 of 1984 6 1. Whether the learned lower appellate court was justified in reversing the findings of the learned trial court on issue No.2, even though there was a specific report of the local commissioner, in the previous suit between the parties to the extent that there was no encroachment by the defendant-appellant? 2. Whether the judgment and decree passed by the learned lower appellate court is based on no evidence and therefore, not sustainable in the eyes of law? 3. Whether the judgment and decree passed by the learned trial court could be reversed without reversing the finding on issue No.3, vide which learned trial court had held the suit to be barred by limitation? On the substantial questions of law referred to above, learned counsel for the appellant vehemently contended, that in the previous suit between the parties, the dispute was with regard to the same taur, which was said to have been encroached upon by the defendant/appellant. In view of the report of the local commissioner that no part of taur of the plaintiff/respondents was encroached upon by defendant / appellant, the suit was dismissed. In this case again the plaintiff/respondents, failed to prove his ownership over the plot in dispute, nor the plot was co-related with the Khana Shumari register. The learned lower appellate court, therefore, committed an error in coming to the conclusion, that the suit was not barred RSA No.1295 of 1984 7 byr the principle of res judicata. I find force in this contention of the learned counsel for the appellant. Previous suit was not merely suit for injunction but for ownership and injunction, wherein the plaintiffs claimed to be the owners of taur, which was again in dispute in this suit. The previous suit was dismissed by recording a positive finding on issues No.1 and 2 regarding the ownership and possession, against the plaintiff/respondents, therefore, finding inter se between the parties in the previous suit was binding. The learned trial court was right in holding that the suit was barred by principles of res judicata. The first substantial question of law, therefore, is answered in favour of the appellant and against the plaintiff/respondents. The finding of the learned lower appellate court on issue No.2 is reversed, and that of learned trial court restored. On the second substantial question of law, learned counsel for the appellant vehemently contended that the suit filed by the plaintiff/respondents was for possession, of plot marked by letters ABCEH but the learned lower appellate court passed a vague and non-speaking decree, by holding that the appellant/defendant is entitled to retain plot measuring 5½ marlas, and that the suit of the plaintiffs succeed qua the remaining portion, without identifying which area according to the learned lower appellate court was encroached upon / or was liable to be given to plaintiff / respondents. Learned lower appellate court overlooked the fact that in the previous suit, as well as in the present suit the appellant/defendant had RSA No.1295 of 1984 8 proved by way of documentary evidence that he was owner of 13 marlas of land i.e. plot N0.13 which was sold by Rehabilitation Department, to the vendor of defendant/appellant from whom he purchased the plot measuring 13 Marlas. Out of the said purchase appellant was in possession of 11/12 marlas. The second substantial question of law also is answered in favour of the appellant, as it was not open to the learned lower appellate court to pass a vague and indefinite decree, by making out altogether a new case which is neither pleaded nor was dispute between the parties, only on the basis of surmises and presumptions. In the absence of any positive evidence or case set up in this regard. On the third substantial question of law, learned counsel for the appellant contended that on issue No.3, a specific finding was recorded that the plaintiff/respondents had failed to prove that they were ever in possession of the taur in dispute in the last 12 years. The stand of the plaintiff/respondents that they were dispossessed two months prior to the filing of the suit, stood falsified from the fact, that in earlier suit also an injunction was claimed with regard to this very taur in the year 1973 in which the plaintiffs failed. The plaintiff/respondents led no evidence as to when they were dispossessed from the taur in dispute, the possession of which was sought. Learned lower appellate court has not even mentioned a word about issue No.3. It could not, therefore, reverse the finding recorded by the learned trial court. It is well settled law that appellate court in order to reverse the findings, has to meet with the reasons given by the learned trial RSA No.1295 of 1984 9 Court. The judgment of the learned lower appellate court is totally silent on issue No.3. The findings of the learned lower appellate court in reversing the judgment and decree of the learned trial court, without reversing the finding on issue No.3, cannot be sustained in law. Third substantial question of law is also answered in favour of the appellant and against the plaintiff / appellant. In view of the findings recorded above, this appeal is allowed The judgment and decree passed by the learned lower appellate court is set aside and that of the learned trial court is restored but with no order as to costs. 3.02.2010 (Vinod K.Sharma) rp Judge