IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. 385/1998 Reserved on:28.7.2009 Decided on:21.8.2009 ________________________________________________ Prem Singh and Others. …Appellants. Versus Kishan Lal and others. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellants : Ms. Jyotsana Rewal Dua, Advocate. For the Respondents: Mr. Karan Singh Kanwar, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 30.12.1996 passed by the learned District Judge, Sirmaur in civil appeal No. 127-N/13 of 1994. Brief facts necessary for the adjudication of this Regular Second Appeal are that the appellants-plaintiffs (hereinafter referred to as ‘the plaintiffs’ for convenience sake) purchased the suit land from Smt. Shankutla and others in the year 1980. The land of the 1 Whether reporters of the local papers may be allowed to see the judgment? Yes.. 2 respondents-defendants (hereinafter referred to as ‘the defendants’ for convenience sake) is situated adjacent to it. It is alleged by the plaintiffs that the defendants have encroached upon the suit land and refused to vacate inspite of the requests. The suit has been filed for possession of the suit land on the basis of title. The defendants have contested the suit by filing written statement. They have alleged that they have been in possession of the suit land as tenants-at-will on payment of Batai and thus they have acquired title under the Himachal Pradesh Tenancy and land Reforms Act. It is further alleged that the similar suit was filed by the plaintiffs in the year 1981 for the issuance of injunction qua the land comprised in Khasra Nos. 154/90/1, 154/90/2, 154/90/3, 154/90/4 and 225/84/1 measuring 7.19 bighas as per jamabandi for the year 1977-78. The suit was dismissed by the trial court. The appeal preferred by the plaintiffs was also dismissed by the learned Additional District Judge. The plaintiffs filed Regular Second Appeal in this Court, which was also dismissed on 21.7.1989. In other words, the defendants have argued that the present suit is barred by the principle of res judicata. With regard to remaining land measuring 3.1 bighas, it was alleged that since the land has been in their possession along with land measuring 7.19 bighas, they have become tenant qua this land also. The learned Sub Judge dismissed the suit on 20.1.1994. The plaintiff preferred an appeal before the learned District Judge, Sirmaur. The learned District Judge, Sirmaur dismissed the appeal on 30.12.1996. This Regular Second Appeal has been directed against 3 the judgment and decree dated 30.12.1996. The same was admitted on the following substantial questions of law: 1. “Whether the learned courts below erred in law in holding that the matter in issue was barred by the principles of resjudicata? 2. Whether the learned courts below erred in law and in fact in holding that the suit land was not identifiable when the suit land was specifically identifiable? Ms. Jyotsna Rewal Dua, Advocate appearing on behalf of the appellants has vehemently argued that the judgments and decrees passed by the courts below are not sustainable in the eyes of law. She then contended that the present suit was not barred by principle of res judicata. She further contended that the learned District Judge has come to a wrong conclusion that the decree as prayed for could not be granted in the absence of the suit land being properly identified and marked. Mr. Karan Singh Kanwar, Advocate appearing on behalf of the respondents has supported the judgments and decrees passed by both the learned courts below. I have heard the learned counsel for the parties and perused the record carefully. Since both the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. A bare perusal of para 7 of the judgment passed by the learned District Judge, Sirmaur reveals that the learned counsel appearing on behalf of the plaintiffs before the first appellate court has not disputed 4 that the plaintiffs had filed suit in the year 1981 for the issuance of injunction with regard to land measuring 7.19 bighas including the suit land. He has also not disputed in the said suit that the learned Sub Judge vide his judgment dated 31.10.1986 had held the defendants to be in possession of the land measuring 7.19 bighas as tenants-at-will. He has also admitted that the appeal preferred by the plaintiffs against the judgment was dismissed by the learned Additional District Judge and this Court. He had also conceded at Bar as per the contents of para 7 of the judgment passed by the learned District Judge that the suit preferred by the plaintiff qua the land measuring 7.19 bighas is barred by principle of res judicata. The learned counsel appearing on behalf of the plaintiffs had argued before the learned District Judge that the learned Sub Judge should have decreed the suit qua remaining suit land measuring 3.1 bighas. The possession of the defendants has been accepted by the courts in earlier civil suit bearing No.1/1 of 1981 qua land measuring 7.19 bighas. The judgment was passed by the learned Sub Judge on 31.10.1986 (Ex.D-4). The learned Additional District Judge dismissed the appeal on 24.4.1989 (Ex.DX). The Regular Second Appeal preferred against the judgment and decree passed by the Additional District Judge was dismissed by this Court on 21.7.1989 (Ex.DX/1). The learned counsel appearing on behalf of the plaintiffs has concealed this position before the learned District Judge and on that bases the defendants were held to be in possession of the land measuring 7.19 bighas as detailed. The plaintiffs have not given correct identification of the property of the remaining land measuring 5 3.1 bighas for passing a decree of possession. They were required to specifically identify the suit land. They have not even filed the copy of jamabandi showing comparative khasra numbers and have also failed to file and prove the report of the Revenue Officer to identify the land measuring 3.1 bighas out of the suit land. Their Lordships of the Hon’ble Supreme Court in P. Chandrasekharan and others versus S. Kanakarajan and others, (2007) 5 SCC 669 have held that the plaintiff, before his suit is decreed, must establish the cause of action in respect of the property in question wherefor the relief for recovery of possession has been claimed. Their Lordships have held as under: “The plaintiff, before his suit is decreed, must establish the cause of action in respect of the property in question wherefor the relief for recovery of possession has been claimed. In case the suit is decreed, the executing court must be able to deliver possession thereof and thus there cannot be any doubt whatsoever that the property in suit must be adequately identifiable. When such a relief is claimed the plaintiff must show what he had purchased and how the court, in the event a dispute arises, would determine the identity of the property.” Accordingly, in view of the observations made hereinabove and the law laid down by their Lordships of the Hon’ble Supreme Court, as noticed above, since the plaintiffs have failed to identify the property qua the land measuring 3.1 bighas, the decree as claimed for by them could not be passed against the defendants. The learned courts 6 below have correctly appreciated the oral as well as documentary evidence. Consequently, there is no merit in this Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs. (Rajiv Sharma), J. 21.8. 2009. *awasthi*