RSA No.2065 of 2008(O & M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2065 of 2008(O & M) Date of Decision:21.09.2010 Balbir Singh ..... appellant Versus Lalit Mohan Jain & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Manoj Chahal,Advocate for the appellant Mr.Rajneesh Chauhan, Advocate for respondents No.1 to 4 **** RAKESH KUMAR GARG J. CM No.6241-C of 2008 After hearing learned counsel for the parties, delay of 152 days in filing this appeal is condoned. CM disposed of. RSA No.2065 of 2008(O & M): Appellant, who was defendant No.4 before the trial Court, has filed the instant appeal challenging the judgment and decrees of the courts below passed in Civil Suit No.330 of 09.12.1996 and Civil Appeal No.56 of 17.05.2006 passed by Civil Judge(Jr.Divn.),Gurgaon and Additional District Judge, Gurgaon, respectively, whereby suit of the plaintiffs for permanent injunction was decreed and appeal filed by him before Lower Appellate Court was dismissed. The brief facts, necessary for the disposal of this appeal are RSA No.2065 of 2008(O & M) 2 that plaintiff-respondents filed the instant suit i.e. Civil Suit No.330 of 09.12.1996 seeking permanent injunction restraining the defendants (including appellant) from interfering in their possession, as well as ownership rights of the land in question and from demolishing the construction existing on the land in question alleging that the defendants had no right, title or interest in the suit land and revenue entries in respect of the suit land were illegal, invalid and nullity in the eyes of law. It is the version of the plaintiffs that they were lawful owners in possession of the suit land measuring 18K-12M comprised in khewat No.571, Rect.No.42, killa No.8(8-0), 9/1(5-19), 10/2/2(4-15) situated in the revenue estate of village Choma, Tehsil and District Gurgaon which was purchased from appellant vide registered sale deed dated 30.05.1988 for consideration. Mutation No.2156 was also sanctioned in their favour on 18.03.1989. The plaintiffs had purchased total area of 21K-19M. However, some of the land was utilized by the Government for construction of the road and the land in question falls on both the sides of the roads constructed by the Government. After purchase of the land, plaintiffs immediately constructed boundary wall on three sides of the land and also fixed pillars with barbed wire and also constructed a pucca kotha and also installed a tubewell having electric connection No.GAG-688 in the land in question and since then, were in actual and physical cultivating possession. Defendants have got no right, title or interest in the suit land which was purchased with the consent, knowledge and notice of defendant Manohar Bansal who gave his consent on the sale deed of the plaintiffs admitting and acknowledging their ownership as well as possession on the suit land. Defendant No.1 who was a big property dealer started carving out an unauthorized colony surrounding the land of the plaintiffs and started constructing roads without seeking prior permission from District Town Planner, Gurgaon and approached the plaintiffs to purchase RSA No.2065 of 2008(O & M) 3 the land in question saying that the land of the plaintiffs is falling in between his project. However, plaintiffs refused to oblige him. He threatened the plaintiffs that he will forcibly take possession and demolish their construction. About a week ago, they came to know that Manohar Bansal, illegally and in collusion with the revenue staff and defendants got some manipulation in the revenue record with intention to grab the land of the plaintiffs and about two days ago, the defendants forcibly and illegally demolished the four walls of the plaintiffs' land and also uprooted the cemented poles. The action of the defendants was contrary to the law as they had no right to interfere in the possession of the plaintiffs and entries in the revenue record, if any, in their favour or any other document pertaining to the land in question was illegal, forged and result of fraud and was not binding upon them. The defendants had never remained in the possession of the land in question. The plaintiffs also made a complaint to the police but no action was taken. Defendants were adamant to take forcible possession and to further demolish the construction. Hence the suit. Upon notice, defendants contested the claim of the plaintiffs by filing their separate written statements. However, defendants No.2 and 3 were proceeded against ex parte vide order dated 18.11.1998. Defendant No.1 filed written statement and raised various preliminary objections. Upon merits also, material averments were denied. It was denied that plaintiffs were in possession of the suit land in which Smt.Sudesh Gehlot w/o Satish Gehlot was in possession as Pattedar. It was also denied that plaintiffs purchased the suit land and mutation was sanctioned in their favour. It was even denied that on 30.05.1988 defendant-appellant Balbir Singh was in possession of the suit. It was denied that plaintiffs had entered into the possession of the suit land which was in physical possession of the pattedar since 26.11.1987. Balbir Singh had given the RSA No.2065 of 2008(O & M) 4 suit land on 20 years lease vide registered lease deed dated 26.11.1987. It was denied that defendant No.3 had not transferred his lease of rights in favour of defendant No.2. It was also denied that plaintiffs had purchased the suit land with the consent of defendant No.2. It was also denied that defendant No.1 had started carving any unauthorized colony as alleged. Giving of any threat to take forcible possession of the suit land was also denied. It was further submitted that on 30.05.1987, defendant No.4 was not in possession of the land and under the alleged sale deed, he could not give the possession of the suit land to the plaintiffs. The patta dated 30.11.1987 was a registered document and had priority over the documents dated 30.05.1988. After asserting the possession of Smt.Sudesh Gehlot, it was denied that defendant No.1 was adamant to take possession of the suit land. After denial of material averments, dismissal of the suit was prayed for. In his written statement, defendant No.4 denied the material averments of the suit. The version of defendant No.4 is that he had not sold any piece of land to the plaintiffs and they might have manipulated with defendant No.2. Defendant No.2 never appointed defendant No.4 as his GPA. Defendant No.2 had been cheated by misrepresentation and fraud by defendant No.4. It was further stated that defendants No. 1 to 3 and Smt.Sharda Bansal are colluding with each other and played fraud with defendant No.4. It was further pleaded that even if it is proved that mutation No.2156 was rightly sanctioned on 18.03.1989, it was denied that defendant No.2 had given the consent regarding the sale deed. Ultimately, after denial of the other averments, dismissal of the suit was sought. In the second suit, i.e.Civil Suit No.331 of 1996, the plaintiffs sought decree for declaration that the documents of the lease deed dated 26.11.1987, 02.05.1988 and 04.10.1996 executed by defendants in favour of each other, in respect of the suit land were illegal, invalid and similarly RSA No.2065 of 2008(O & M) 5 the mutations and entries in the revenue record on the basis of said forged and nonest and were illegal. Defendants No. 1 to 3 never entered and remained in possession of the suit land in any manner and the said lease deeds were never acted upon and were never binding in any manner. Thus, the version of the plaintiffs in Civil Suit No.331 of 1996 is that they are lawful owners in possession of the suit land and none of the defendants have got any right, title or interest in the suit land which was purchased with their consent and knowledge. The plaintiffs inspected the records and came to know that forged lease deeds were set by the defendants alleged to have been executed on 04.10.1996. From the pleadings of the parties, the following issues were framed in Civil Suit No.330 of 09.12.1996: 1. Whether the plaintiffs have purchased the suit land vide sale deed dated 30.05.1988 with the consent of defendant No.2 and then became owners in possession of the same? If so, what effect?OPP 2. Whether the plaintiff has concealed the true facts from the Court?OPD 3. Whether the suit is not maintainable?OPD 4. Whether the suit is liable to be dismissed under Section 10 CPC?OPD 5. Whether the plaintiff has no locus standi?OPD 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD 7. Whether the suit is liable to be dismissed for not disclosing any cause of action?OPD 8. Relief. The trial Court also framed the following issues in second Civil Suit No.331 of 1996: RSA No.2065 of 2008(O & M) 6 1. Whether the plaintiffs are owners of possession of the land in question as alleged in the plaint?OPP 2. Whether the lease deed dated 26.11.87,02.05.88, and 04.10.96 are illegal, invalid, void as alleged?OPP 3. Whether the suit is liable to be dismissed under Section 10 CPC?OPD 4. Whether the plaintiffs have not come with clean hands?OPD 5. Whether the plaintiffs have no cause of action?OPD 6. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD 7. Whether the plaintiff has no locus standi?OPD 8. What is effect of proceedings under Section 145 CPC?OPD 9. Relief. Both the suits were consolidated. The contesting parties led their evidence in support of their case. After hearing learned counsel for the parties, the Lower Appellate Court decreed both the suits of the plaintiffs with costs vide impugned judgment and decree dated 08.04.2006. The operative part of the judgment of the trial Court reads as under: “As a sequel to the aforementioned findings suit of the plaintiffs succeed and are hereby decreed with costs. It is declared that the plaintiffs are owners in possession of the suit land detailed in para No.1 of the plaint and the lease deeds dated 26.11.87, 02.05.88 and 04.10.96 executed between the defendants have no effect on their rights. The defendants are also restrained permanently from making any RSA No.2065 of 2008(O & M) 7 interference into the ownership and possessory rights of the suit property in any manner. Decree sheet be prepared accordingly. A copy of the judgment be also placed on the case file titled as Lalit Mohan Jain etc.vs.Smt.Sudesh Gehlot etc. File be consigned to record room after due compliance.” Aggrieved from the judgment and decree dated 08.04.2006, passed in Civil Suit No.330 of 09.12.1996 appellant preferred an appeal before the Lower Appellate Court as Civil Appeal No. 56 of 17.05.2006. No appeal was filed to challenge the findings of the trial court in Suit No.331 of 1996 titled as Lalit Mohan Jain vs. Smt.Sudesh Gehlot. On appreciation of evidence, the Lower Appellate Court upheld the findings of the trial Court and recorded a concurrent finding of fact that plaintiffs were in possession of the suit land and the plaintiff- respondents were held entitled to protect their possession until ordered to hand over the possession. Still not satisfied, the appellants have approached this Court by filing the instant appeal. It is necessary to note that the findings of Civil Suit No.331 of 1996, was decided along with the present suit i.e.Civil Suit No.330 of 05.12.1996 by one common judgment and the findings of that suit have never been challenged and have become final between the parties. In fact, vide order dated 12.01.2002, both the suits were consolidated and the Civil Suit No.330 of 1196 titled as Lalit Mohan Jain & ors.vs.M/s Prem Properties Pvt.Ltd.was treated as main suit and thereafter both the parties have adduced evidence and after hearing learned counsel for the parties, both the suits were decided together. It may also be noticed that while deciding issue No.1 of the instant suit holding that the plaintiffs have become owner in possession of the land in question on the basis of the RSA No.2065 of 2008(O & M) 8 sale deed Ex.P-1. It was further held that the lease deeds dated 26.11.87, 02.05.88 and 04.10.96 (which were under challenge in the second suit i.e.Civil Suit No.331 of 1996) were having no effect on the rights of the plaintiffs. It is also a matter of record that while deciding issues No. 2 to 7 of Civil Suit No.330 of 1996, issues No.3 to 8 of Civil Suit No.331 of 1996 were also decided holding that the burden to prove these issues was upon the defendants and the same were held against them being not pressed. Thus, the findings in both the suits were dependent on each other and appellant was defendant in both the suits filed by the plaintiff-respondent. This Court in the case of Harjeet Singh & Ors. vs.Mehar Singh 2010(3) PLR 52 has held that if two suits filed by the parties against each other pertaining to the same property involving same questions were consolidated, heard and decided by the court by a common judgment then appeal filed against one of the decree would not be maintainable and would be barred by principle of res judicata. In view of the aforesaid judgment of this Court, the present appeal challenging the findings of the Civil Suit No.330 of 1996 in the absence of any appeal challenging the findings of Civil Suit No.331 of 1996 is not maintainable. Thus, no substantial question of law as argued, can be said to be arising in this appeal. No merits. Dismissed in limine. (RAKESH KUMAR GARG) JUDGE 21.09.2010 neenu