R.S.A.No.2545 of 1985 (O&M) -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.2545 of 1985 (O&M) Date of Decision: August 09, 2011 Rattan Singh and others ---Appellants versus Mani Ram and others ---Respondents Coram: HON'BLE MR. JUSTICE GURDEV SINGH *** Present: Mr. Vipin Mahajan, Advocate, for the appellant Mr. Dinesh Sharma, Advocate for the respondent *** Gurdev Singh, J. The appellants-defendant Nos. 1 to 6, 8 and 9 have preferred this second appeal against the judgment and decree dated 29.4.1985 passed by Addl. District Judge, Gurdaspur, vide which their first appeal filed against the judgment and decree dated 21.4.1984 passed by Sub Judge Ist Class, Pathankot, decreeing the suit of respondent No. 1-plaintiff for possession of half share of the land in dispute measuring 64 kanals and 01 marla situated in the revenue estate of village Mastpur, Tehsil Pathankot, as fully detailed in the heading of the plaint, was dismissed. R.S.A.No.2545 of 1985 (O&M) -2- Plaintiff filed suit for permanent injunction restraining defendant Nos. 1 to 9 from interfering in his possession over the suit land. He pleaded in his plaint that defendant Nos. 10 to 12 were the original owners of the suit land and he was cultivating the same since the time immemorial. Those defendants were big land owners and the land in dispute was their surplus area. He made an application under Section 18 of the Punjab Security of Land Tenures Act, 1953, to purchase the same and half share of the land in dispute, which was the share of defendant No. 12, was sold to him and mutation to that effect was sanctioned in his favour. However, the other half share of defendant Nos. 10 and 11 did not form part of their surplus area and as such, he could not purchase the same and continued to be in possession thereof as a tenant. Thus, he is owner in possession to the extent of half share and in possession of the remaining half share as a tenant. Now, defendant Nos. 1 to 9 are threatening to interfere in his possession and to dispossess him therefrom. The suit was contested by the defendants. Defendant Nos. 1 to 9 filed joint written statement in which they denied the contentions of the plaintiff. They pleaded that they have purchased the land in dispute and have already obtained a decree against the plaintiff from the Court of Additional District Judge, Gurdaspur. The present suit is barred by the principles of res judicata and they have every right to recover the possession in execution of the decree and proceedings to that effect are already pending in the Court. Warrant of possession was issued by the Court on 8.3.1982 and the same was disobeyed by the plaintiff. They never threatened to interfere in his possession illegally. The suit is not maintainable and they prayed for dismissal thereof. Defendant Nos. 10 to 12 in their short written statement denied the contentions of the plaintiff and supported the stand taken by defendant Nos. 1 to 9. R.S.A.No.2545 of 1985 (O&M) -3- In replications to the written statements, the plaintiff denied the contentions made therein and reiterated his averments made in the plaint. On the pleadings of the parties, following issues were framed by the learned trial court:- 1.Whether the plaintiff is owner in possession of the suit land to the extent of half share and is tenant in possession in the remaining half share ? OPP 1A. Whether the present suit is barred by the principle of res judicata ? OPD 2. If issue No. 1 is proved whether the defendants threatens to dispossess the plaintiff forcibly from the suit land ? OPD 3.Whether the plaintiff is entitled to the injunction prayed for? OPP 4.Relief. To succeed in the suit, plaintiff himself entered the witness box as PW-1 and examined Lalu Raj, PW-2, Udham Singh, PW-3 and Gayatri Singh, PW4. On the other hand, defendants examined Major Singh, DW-2, Chain Singh, DW-3 and Daljit Kumar, Halqa Patwari, DW-4. Chuhar Singh -defendant himself entered the witness box as DW-1. After recording findings on all the issues, the learned trial Court decreed the suit of the plaintiff for possession of half share of the land in dispute. I have heard learned counsel for the appellants-defendants. It has been submitted by learned counsel for the appellants- defendants that decree for possession of the whole of the suit land was passed in favour of defendant Nos. 1 to 9 in the suit which was previously instituted against the plaintiff and it was heard and finally decided by Court of competent jurisdiction. The certified copy of the judgment and decree were proved on the R.S.A.No.2545 of 1985 (O&M) -4- record. The findings recorded in the previous suit, in which the parties were litigating under the same title, operate as res judicata regarding whole of the land in dispute and not with regard to half share, as was held by the lower courts. He also submitted that the suit was for perpetual injunction and as such, lower courts were not justified in decreeing the suit for possession. Thus, according to him, following substantial questions of law arise in the present appeal:- 1. Whether the previous judgment and decree between the same parties operate as res judicata in respect of the whole of the land in dispute and not in respect of half share therein ? 2. Whether the lower courts were justified in passing a decree for possession when the suit was for permanent injunction simpliciter ? There is no merit in the submissions advanced by the learned counsel for the defendants. No doubt, in para 8 of that judgment, Ex. D-1, it is mentioned that the suit of the plaintiff-appellants No. 5 to 9 for possession of the entire land is decreed but perusal of the whole of that judgment makes it clear that the finding was recorded to the effect that the plaintiff-appellant Nos. 5 to 9 are the owners of the half share of the disputed land. After that finding had been recorded, the decree could have been passed only for possession of half share of the suit land and not regarding whole of the land. The relief to be granted was to be based on the finding already recorded. A correct finding was recorded by the lower courts that the suit of the plaintiff is barred by the principle of res judicata only to the extent of half share of the suit land, in view of the finding recorded in the previous suit. No doubt, the suit was for permanent injunction but decree for possession could have been passed in case the plaintiff was successful in R.S.A.No.2545 of 1985 (O&M) -5- proving that the possession of the land in dispute was taken from him during the pendency of the suit itself. Learned counsel for the defendants has tried to place reliance on the report, Ex. DW4/A, which was recorded in the Roznamcha Vakaiti of the Halqa Patwari at the time of delivery of possession. As per that report, the possession was delivered to defendant Nos. 1 to 9 on 26.5.1983 whereas the present suit was filed on 24.2.1982. Therefore, the relief of possession could have been granted by the trial court even without amendment of the pleadings. No illegality was committed by the lower courts while decreeing the suit for possession. The above said substantial questions of law are answered accordingly. There is no merit in the appeal and the same is hereby dismissed. Records of the trial court be returned forthwith. (GURDEV SINGH) JUDGE August 09, 2011 PARAMJIT Whether to be referred to the Reporter ? Yes/No