RSA No.3805 of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3805 of 2007 (O&M) Date of decision 3.8.2011. Subhash Chand ...... Appellant. versus Prithi Gir and others ...... Respondents. CORAM : HON'BLE MR. JUSTICE K.C.PURI Present : Ms. Kamalpreet Kaur, Advocate for the appellant. Mr. Vikas Kumar, Advocate for the respondent Nos.1 and 2. K.C.PURI . J. This appeal is directed by defendant/appellant against the judgment and decree dated 4.8.2007 passed by Shri Hari Paran Singh, District Judge, Sirsa vide which the appeal preferred by the defendant/appellant against the judgment and decree dated 28.5.2003 passed by Sh Sushil Kumar Garg, Civil Judge (Senior Division) Sirsa was dismissed. 2. The facts of the present case in brief are that plaintiffs and legal heirs of Ram Murti (since deceased) are not bound by the order dated 5.8.1997 passed by Sub Divisional Officer (Civil) Sirsa as Collector Sirsa in case titled “Subhash Chand and others Versus Krishan Kumar”, case No. 9 – Redemption of 1996 decided on 5.8.1997 and that the defendants are not entitled to recover possession of the land measuring 24 Kanals comprised in RSA No.3805 of 2007 2 Sq. No.155 Killa No.16 (8-0), 17(8-0), 18(8-0), situated in the area of village Jodhkan, Tehsil and District Sirsa, in execution of the impugned order dated 5.8.1997. The plaintiffs have also sought a decree for permanent injunction restraining the defendants from recovering the possession of the suit land from them and the legal heirs of deceased Ram Murti. 3. It has been further pleaded by the plaintiffs that they and legal heirs of deceased Ram Murti are in joint cultivating possession of the suit land and the same is a part of joint khewat, which has an area of about 150 acres; Shri Chanchal Gir one of the co-owners had mortgaged some land out of this joint khewat with one Aasa Ram of Hisar. Sh. Ram Chand Gir, Arjan Gir, Birnal Gir, Atma Gir and Rugha Gir were the sons of Chanchal Gir and they had inherited the land of Chanchal Gir with their sisters with the result that they were recorded to be mortgagors of the suit land; that above said Ram Chand Gir, “Arjan Gir, Birbal, Atma Gir had started interfering into the possession of the plaintiffs and that of Ram Murti (since deceased) and the plaintiffs were forced to file a civil suit No. 937 of 1979 against Ram Chand Gir etc. for injunction and in that suit, the plaintiffs had claimed their possession as co-sharers; the aforesaid suit No. 937 of 1979 was decreed by the Court of Shri S.N. Chandha, Sub Judge Ist Class, Sirsa on 5.11.1981 and the defendants of that suit were restrained from interfering into the possession of the plaintiffs over the suit land; an appeal was also preferred by the defendants against the judgment and decree dated 5.11.1981, which was partly accepted by Shri R.D. Aneja, the then learned Addl. District Judge Sirsa on 22.11.1983 but the decree dated 5.11.1981 qua the suit land was maintained; that defendants No. 1 and 2 are legal heirs of RSA No.3805 of 2007 3 deceased Birbal Gir and defendants No. 4 to 6 are legal heirs of deceased Ram Chand Gir, who were defendants in the earlier suit; that defendants No. 1 to 3 and late Shri Ram Chand Gir, predecessor of defendants No. 4 to 6 filed a petition for redemption of 55 Kanals 4 marlas land, which includes the suit land on payment of Rs.6000/- in the Court of S.D.O. (Civil) Sirsa; that petition was filed against Krishan Kumar etc., the mortgagees; that the aforesaid petition was allowed by S.D.O. (Civil) Sirsa on 5.8.1997 and on the basis of said order, the defendants have filed an execution petition for delivery of the possession of the suit land; that order dated 5.8.1997 passed by S.D.O. (Civil) Sirsa is not binding on the rights of the plaintiffs and legal heirs of deceased Ram Murti because they were not parties to the redemption petition and they are independently in possession of the suit land as co-sharers; that the plaintiffs have never claimed their possession under the mortgagee that the defendants/mortgagors have already been restrained from interfering in the possession of the plaintiffs in civil suit No.937 of 1979 and the decree passed in civil suit No. 937 of 1979 is still operative and binding upon the parties; that the defendants are bent upon to dispossess the plaintiffs from the suit land in the guise of the impugned order dated 5.8.1997 and hence the suit. 4. Defendants have filed their written statement controverting the case of the plaintiffs and they have taken the preliminary objections about the jurisdiction of the court; maintainability of the suit in the present form; cause of action and that the suit is bad for non joinder of necessary parties. They have stated that the legal heirs of deceased Ram Murti are necessary parties for the disposal of the suit but they have not been impleaded as RSA No.3805 of 2007 4 parties. On merit, they have denied that the plaintiffs are in possession of the suit land as co-sharers. They have stated that the suit land along with other land was mortgaged with possession by Shri Chanchal Gir for a sum of Rs.6000/- vide registered deed No. 2250 dated 29.9.1967 and now the same has been got redeemed by them vide order dated 5.8.1997 and they are getting the possession in execution of the order dated 5.8.1997. The mortgagees or the plaintiffs have no right to challenge that order and the Collector is bound to restore the possession to the defendants, who have lawfully got the suit land redeemed. The plaintiffs are not in possession of the suit land as co-sharers but are in possession through Shri Aasha Ram, mortgagee and they are bound by the order dated 5.8.1997. They have prayed for dismissal of the suit with cost. 5. Plaintiffs have filed replication controverting the case of the defendants and have reiterated their case as set up in the plaint. 6. From the pleadings of the parties, following issues were framed on 24.2.1999:- 1. Whether the plaintiffs and the legal heirs of Sh. Murti since deceased are in the joint cultivating possession of the suit land as co-sharer? OPP 2. If issue NO. 1 is proved, whether the plaintiffs are entitled for the injunction as prayed for? OPP 3. Whether the Civil Court has no jurisdiction to try and entertain the present suit? OPD. 4. Whether the suit of the plaintiffs is not maintainable in the present from? OPD 5. Whether the suit is bad due to non joinder of necessary parties? OPD 6. Whether the plaintiffs have got no cause of action RSA No.3805 of 2007 5 to file the present suit? OPD 7. Whether the suit of the plaintiff is liable to be dismissed with special cost? OPD 8. Relief. 7. The parties have led their respective evidence on the aforesaid issues. The trial Court after hearing the learned counsel for the parties decreed the suit of the plaintiffs with costs vide judgment and decree dated 28.5.2003. The trial Court declared that the impugned order dated 5.8.1997 passed by Shri K.K.Gupta, S.D.O.(Civil), as collector Sirsa passed in case titled Subhash Chand and others versus Krishan Kumar case No.9, Redemption of 1996 decided on 5.8.1997 is not binding on the rights of the plaintiffs and they cannot be dispossessed from the suit land on the basis of that order. The trial Court further restrained the defendants from taking the possession of the suit land from. 8. Feeling dissatisfied with the aforesaid judgment, the defendants preferred the first appeal. The said appeal was heard by Shri Hari Paran Singh, District Judge, Sirsa and vide judgment dated 4.8.2007, the said appeal was dismissed. 9. Still feeling dissatisfied with the judgment and decree dated 28.5.2003 passed by Shri Sushil Kumar Garg, Civil Judge (Senior Division) Sirsa and judgment and decree dated 4.8.2007 passed by Shri Hari Paran Singh, District Judge, Sirsa, the defendants/appellant have preferred the present appeal. 12. The defendants/appellants in para No.5 of the grounds of appeal have mentioned that following law points are involved in the present appeal :- RSA No.3805 of 2007 6 i) Whether any one co-mortgagor can redeem the entire mortgaged land. ii) Whether the principle of Res-Judicata applies when the question of capacity in which a person is in possession is not decided in earlier suit. Iii) Whether the suit is barred on account of non-joinder of necessary parties as legal heirs of Ram Murti have not been impleaded. I have heard learned counsel for the parties and have gone through the records of the case with their able assistance. Learned counsel for the appellant has submitted that admittedly the suit land was mortgaged by Chanchal Gir for a consideration of Rs.6000/- in the year 1967. The said land was redeemed by the appellant vide order dated 5.8.1997 passed by the Competent Authority. The plaintiffs/respondents were in possession of the suit property as tenant and not as cosharer as held by both the Courts below. On redemption of the land, defendant/appellant has the right to get the possession in execution of the order dated 5.8.1997 and is entitled for actual possession of the suit land. It is settled law that one mortgagor can redeem the entire mortgaged land. It is further submitted that learned trial Court has taken into account the earlier judgment Ex.PX into consideration while decreeing the suit of the plaintiff for injunction. The finding of both the Courts below that previous judgment operates as res judicata is wrong on the face of it. The previous judgment was simply suit for injunction. No doubt, the plaintiffs/respondents have claimed themselves to be in possession of the suit property as cosharers in earlier suit but no specific finding regarding nature of possession has been returned by the Court. So, the previous RSA No.3805 of 2007 7 judgment does not operate as res judicata. Otherwise also, Hon'ble Apex Court in authority Gram Panchayat of Village Naulakha v. Ujagar Singh and others AIR 2000 SC -3272. It has been held that even if issue regarding title has been framed in a suit for permanent injunction that cannot operate as res-judicata in later proceedings as finding regarding title need not be returned in a suit for injunction. It is further submitted that in authority Harbans v. Om Parkash Ors. 2006(1) Civil Court Cases 309 (Supreme Court), it has been held that right of redemption cannot be taken away by any Court. The appellant is entitled to get the possession in execution of the order dated 5.8.1997. It is further submitted that suit is barred for nonjoinder of necessary parties as legal heirs of Ram Murti have not been impleaded. In reply to the above noted submissions, learned counsel for the respondents/plaintiffs has supported the judgment and decree of the trial Court. It is submitted that plaintiff/respondents were not party in the proceedings which culminated into the order dated 5.8.1997 regarding redemption of the suit land. There is concurrent finding of fact recorded by both the Courts below that owner of the suit property is co-sharer. So, both the Courts below have rightly held that plaintiffs/respondents cannot be dispossessed by execution of order dated 5.8.1997. I have given my thoughtful consideration to the rival submissions made by both the sides and have gone through the records of the case. The case of the plaintiffs before both the Courts below was that they are in possession of the suit property being co-sharer. That plea of the plaintiffs have been accepted by both the Courts below. So, the findings of RSA No.3805 of 2007 8 fact recorded by both the Courts below that plaintiffs are in possession of the suit property as co-sharer cannot be challenged in view of provisions of Section 100 of the CPC. Both the Courts below have not returned the finding of possession of the plaintiffs being co-sharers on the basis of earlier suit between the parties alone. It has been observed by both the Courts below in the earlier suit between the parties that plaintiffs have claimed to be in possession of the suit property as co-sharer and their suit was decreed. No doubt no specific finding has been given in the earlier suit, which culminated into judgment and decree dated 5.11.1981 passed by Sub Judge Ist Class, Sirsa that plaintiffs are in possession of the suit property as cosharer. Both the Courts below have taken into account the other evidence produced before the trial Court to arrive at the conclusion that plaintiffs are in possession of the suit property as lessee under the mortgagee is not proved on the file. In authority, Gram Panchayat of Village Naulakha v. Ujagar Singh and others' case (supra), the Hon'ble Apex Court while dealing with Section 11 of the Evidence Act, held that decision in a suit for injunction is not binding on question of title even though issue on title was framed in that suit and incidental finding was there. There is no dispute to the proposition that in a suit for injunction the title need not be proved. So , the previous judgment although may not operate as res judicata but is a relevant factor to prove the possession of the plaintiffs over the suit property. In the earlier suit, it has been categorically held that the defendants have remedy to get the possession by way of partition. There is nothing on the file that defendants have ever resorted to partition RSA No.3805 of 2007 9 proceedings. So far as the proposition of law that any co-sharer can redeem the land is concerned there is no dispute to that proposition of law. But the order of redemption cannot be executed against co-sharer. Both the Courts below have rightly held that in case the defendants want actual possession by way of redemption in that case, the plaintiffs should have arrayed as party in the redemption proceedings which culminated into the order dated 5.8.1997. Of course the land stands redeemed but the question here is whether the defendants can get the possession by way of execution of order dated 5.8.1997? Both the Courts below have rightly held that defendant/appellants are not entitled to get the possession by way of execution of the order dated 5.8.1997. So far as the objection raised by the counsel for the appellant that suit is barred for nonjoinder of necessary parties, on account of fact that legal heirs of Ram Murti have not been impleaded as a party is concerned. That objection is without any legal force. The threat faced by the plaintiffs was from the execution of the order dated 5.8.1997 at the hands of appellant. So, the said objection cannot prevail. So far as the authority Harbans's case (supra), relied upon by the learned counsel for the appellant is concerned that authority is not helpful to the appellant. In that authority, it has been held that right of redemption cannot be taken away to deprive the mortgagor of his right to redeem the mortgaged property. So far as the order dated 5.8.1997 regarding redemption of land is concerned i.e. valid but however, here the question is whether the said order can be executed against the co-sharer without impleading them as party in the redemption proceedings, the answer RSA No.3805 of 2007 10 to that question has rightly been given by both the Courts below in negative. 18. So, in view of the above discussion, the substantial questions of law raised by the learned counsel for the appellant are answered as discussed above. 19 Consequently, the appeal is without any merit and the same stands dismissed 20. A copy of this judgment be sent to the trial Court for strict compliance. ( K.C.PURI ) JUDGE August 03 , 2011 sv