RSA No.2591 of 1984 (O&M) -1- ****** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2591 of 1984 (O&M) Date of decision:17.02.2011 Harbans Kaur ...Appellant Versus Jaswant Singh (dead) through LRs and others ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Mr. G.S.Punia, Advocate, for the appellant. Mr. Amit Jhanji, Advocate, for the respondents. ***** RAKESH KUMAR JAIN, J. The plaintiff is in second appeal against the judgment and decree of the Courts below by which her suit for declaration and joint possession as an owner of 1/2 share of the land comprising in Khasra No.22/9/2, 11-12-19/20-21/1, 22/2, 23/6/2-7-14-15-16/2-3-4/1, 5/2-6/1, 25/1/1, 189, 190, 196/1, 215, total land measuring 86 Kanals 7 Marlas, as entered in Khatauni No.178, Khewat No.125, as per jamabandi of 1977-78 of village Thakkarwal, Tehsil and District Ludhiana as co-heirs of Puran Singh, has been dismissed. The plaintiff and defendants are related to each other being heirs of a common ancestor, as per the pedigree table, which is reproduced as under: - Sher Singh (dead) | Puran Singh (dead) | ------------------------------------------------------------------------ | | | | Dalip Singh (dead) | | | | Smt. Kaki (dead) ------------------------------ Bakhshish Singh | | | (dead) Smt. Harbans Kaur Jaswant Singh Sukhdev Singh | (Plaintiff) (Deft. No.1) (Deft. No.2) | | ------------------------------------------------------------------------- | | | Smt. Chhoti daughter Smt. Jai Kaur Widow Smt. Nachhattar Kaur daughter (Deft. No.4) (Deft. No.3) (Deft. No.5) RSA No.2591 of 1984 (O&M) -2- ****** According to the plaintiff, Bakhshish Singh was married to Jai Kaur (defendant No.3) and had two daughters, namely, Chhoti (defendant No.4) and Nachhattar Kaur (defendant No.5). Bakhshish Singh pre-deceased his father Puran Singh. After his death, his widow Jai Kaur (defendant No.3) was married to Dalip Singh and gave birth to Jaswant Singh (defendant No.1) and Sukhdev Singh (defendant No.2). Smt. Kaki D/o Puran Singh also pre-deceased her father leaving behind Harbans Kaur (plaintiff). It was alleged that Puran Singh died six years before 04.09.1969 leaving behind the plaintiff and Dalip Singh as his heirs. Mutation of the estate of Puran Singh took place on 18.07.1969, but could not be completed. No information was ever received by the plaintiff in respect of the mutation proceedings. She came to know about it in June 1976 which was decided against her. She filed an appeal but it was dismissed. It was alleged that the defendants kept concealed the death of Puran Singh with the sole purpose to keep the plaintiff in dark about a right vested in her. It was also alleged that earlier she had filed a suit on the same facts which was dismissed by the Trial Court on the ground that defendants No.4 and 5 were not joined as necessary party. Then she had filed an application in appeal under Order 1 Rule 10 of the Code of Civil Procedure, 1908 [for short “CPC”], but the same was dismissed on 15.03.1979. It was also alleged that second appeal was pending in the High Court at the time of filing of the present suit which was filed after including defendant Nos.4 and 5 as the defendants. In the written statement, it was alleged that the plaintiff is not related to Puran Singh. The pedigree table was denied. Defendant No.3 is not the widow of Bakhshish Singh. It was admitted that earlier suit filed by the plaintiff on the same cause of action was dismissed and appeal was also dismissed, but the second appeal was pending before the High Court. The plaintiff filed replication and on the pleadings of the parties, following issues were framed: - “1. Whether plaintiff is entitled to succeed to the estate of Shri Puran Singh deceased, as alleged?OPP. 2. Whether the plaintiff is entitled to declaration as prayed for?OPP. 3. If issue No.2 is proved, whether the plaintiff is entitled in the alternative for joint possesion of RSA No.2591 of 1984 (O&M) -3- ****** the property in dispute to the extent of half share?OPP. 4. Whether the plaintiff has no locus standi to file the present suit?OPD. 5. Whether the suit of the plaintiff is within time?OPP. 6. Whether the plaintiff is estopped by her act and conduct from filing the present suit?OPD. 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD. 8. Whether the suit is not maintainable in the present form?OPD. 9. Relief.” In support of her case, plaintiff examined her husband Santokh Singh as PW1, who filed Special Power of Attorney executed in his favour by the plaintiff as Ex.P1, certified copy of mutation proceedings as Ex.P2, copy of jamabandi as Ex.P3, certified copy of order whereby earlier suit was dismissed by Sub Judge 1st Class, Ludhiana as Ex.P4, certified copy of order of the learned Additional District Judge, Ludhiana whereby appeal of the plaintiff was dismissed as Ex.P5 and in order to prove relationship of Harbans Kaur with Kaki her mother's father Puran Singh, the plaintiff also examined Thakur singh as PW2, Mohinder Singh as PW3 and Maghar Singh as PW4. In defence, the defendants had examined Jaswant Singh as DW1, Kehar Singh as DW2 and Bhaja Singh as DW3 and copy of the judgment Ex.DX was also filed. The learned Trial Court decided issues No.1 to 4 together to hold that the plaintiff is not the daughter of Kaki and had not succeeded to the estate of Puran Singh neither she is entitled to declaration as prayed for and the joint possession to the extent of half share nor she had any locus standi to file the suit. Issue No.5 was decided against the plaintiff by holding that the suit is not within limitation. Issue No.6 was decided in favour of the defendants in which it was held that the plaintiff had earlier filed a similar suit which was dismissed up to the High Court, therefore, she is estopped from filing the suit afresh on the same cause of action. Issue No.7 was not pressed by the defendants, therefore, it was decided against them and in favour of the plaintiff. Issue No.8 was also decided in favour RSA No.2591 of 1984 (O&M) -4- ****** of the defendants and against the plaintiff by holding that the present suit is not maintainable and while deciding the issue of relief, the suit of the plaintiff was dismissed. The learned First Appellate Court also dismissed the appeal filed by the plaintiff by holding that the plaintiff is not the daughter of Kaki and as such she was not entitled to succeed to the estate of Puran Singh and the suit was also found to have been barred by limitation. Besides this, no other point was urged by the plaintiff before the learned First Appellate Court as observed by it. In the present appeal, the plaintiff had also filed an application, i.e. CM No.3061-C of 1984 under Order 41 Rule 27 of CPC for producing additional evidence in support of issue No.1. While admitting the appeal on 01.02.1985, this Court had directed that the application for additional evidence would be decided with the main case. Learned counsel for the appellant has made his submissions on the main appeal as well as the application in order to persuade this Court to disturb the concurrent finding of fact recorded by the Courts below in which it has been held that the plaintiff is not the daughter of Kaki. At the outset, in order to overcome the finding recorded by the learned Trial Court on issue No.6, learned counsel for the appellant has submitted that the decision of the earlier litigation between the same parties on the same subject matter would not operate as res judicata because the suit was dismissed on the ground of non-joinder of necessary parties. In this regard, he has relied upon a decision of the Supreme Court in the case of State of Maharashtra & another Vs. M/s. National Construction Company, Bombay & another, AIR 1996 Supreme Court 2367(1). He has also submitted that in view of the documentary evidence, which is sought to be produced on record by way of additional evidence through CM No.3061-C of 1984, he could prove that the plaintiff is the daughter of Smt. Kaki. However, learned counsel for the respondents has submitted that the documents, which are sought to be produced on record by way of additional evidence, were very much within the knowledge of the appellant, therefore, these cannot be allowed to be brought on record at this stage because these are affidavit of Joginder Singh dated 02.06.1960, mutation dated 27.08.1977, copy of Will of Joginder Singh dated 03.07.1975, death certificate of Joginder Singh dated 11.08.1977, birth certificate of the appellant Harbans Kaur and the death certificate of Kaki, whereas the suit was filed on 20.12.1979 but still, even if these documents are allowed to be taken on RSA No.2591 of 1984 (O&M) -5- ****** record, it would not improve the case of the appellant in view of the finding recorded by the learned Trial Court on issue No.6. Learned counsel for the respondent has further submitted that the finding recorded in the earlier litigation in Civil Suit No.157 of 1977 which was instituted on 30.09.1977 by the plaintiff/appellant would operate as res judicata and as such the plaintiff is not entitled to file the present suit. In order to appreciate the arguments raised by learned counsel for the respondents, it would be relevant to look into the earlier litigation between the parties. The plaintiff/appellant earlier filed Civil Suit No.257 of 1977 titled as `Harbans Kaur Vs. Shri Jaswant Singh and others' for declaration and joint possession of half share of the property in dispute on the ground of being co-heir of Puran Singh. It was alleged in the suit that the plaintiff is the daughter of Smt. Kaki daughter of Puran Singh and is, thus, entitled to declaration and joint possession of half share of the suit property. On the pleadings of the parties, following issues were framed: - “1. Whether the plaintiff is daughter's daughter of Puran Singh deceased?OPP. 2. What is the effect of marriage of Smt. Jai Kaur with Dalip Singh?OPP. 3. Whether the suit is barred by time?OPD. 4. Whether Smt. Chhoti and Nachhtar Kaur are necessary parties to the suit, if so, its effect?OPD. 5. Whether the parties are governed by Miksaahara school of Hindu Law, if so, its effect?OPD. 6. What share the plaintiff is entitled to claim from the property of Puran Singh deceased?OPP. 7. Relief. The learned Trial Court decided issue No.1 in favour of the plaintiff by holding that the plaintiff is the daughter's daughter of Puran Singh. Issue No.2 was not pressed. Issue No.5 was decided by holding that it has no effect on the present suit. Issue No.6 was decided in favour of the plaintiff, but while dismissing the suit it was held that since Smt. Chhoti and Smt. Nachhatar Kaur were necessary parties and were not impleaded despite the objection having been raised by the defendants, therefore, the suit is bad for non-joinder of the necessary RSA No.2591 of 1984 (O&M) -6- ****** parties. The said judgment and decree of the Sub Judge 2nd Class, Ludhiana dated 09.08.1978 was challenged before the learned First Appellate Court by way of Appeal No.58/117 of 1978 wherein an application under Order 1 Rule 10 of CPC for impleading Smt. Chhoti and Smt. Nachhatar Kaur as defendants in the suit was filed by the plaintiff/appellant. Vide its judgment and decree dated 15.03.1979, the application was dismissed by learned First Appellate Court and consequently the appeal was also dismissed, which led to the filing of RSA No.2729 of 1979 titled as `Harbans Kaur Vs. Jaswant Singh and others' and the same was dismissed on 21.04.1981 by this Court. The plaintiff did not challenge order of this Court by way of SLP before the Supreme Court, thus, it had become final between the parties. Learned counsel for the respondents has submitted that when this litigation was going on, the plaintiff had filed the present suit on 20.12.1979 on the same cause of action after the decision of the learned First Appellate Court on 15.03.1979 and probably when the RSA in this Court was pending. He also submitted that once issue No.1 in the earlier suit has been decided on merits, the same issue cannot be re-agitated and decided by way of a subsequent suit as it would be hit by the principle of res judicata. In this regard, he has relied upon the decisions of the Supreme Court in the cases of Sheodan Singh Vs. Daryao Kunwar (SMT), AIR 1966 SC 1332 and Ramchandra Dagdu Sonavane (dead) by LRs. and others Vs. Vithu Hira Mahar (dead) by LRs and others, (2009) 10 Supreme Court Cases 273. He has also submitted that the learned Trial Court had also dismissed the suit of the plaintiff on the issue of limitation which has been upheld by the learned First Appellate Court and has not been challenged by the appellant even in the grounds of appeal. I have heard both the learned counsel for the parties and have perused the record with their able assistance. The foremost question involved in this appeal is as to “whether the issue No.1 to the effect that whether the plaintiff is the daughter of Smt. Kaki to succeed to the estate of Puran Singh has already been decided in her favour in earlier Civil Suit No.257 of 1977 titled as `Harbans Kaur Vs. Shri Jaswant Singh and others' and the suit has been dismissed on the ground of non-joinder of necessary parties, a fresh suit could be filed by the appellant or it would be barred by the principle of res judicata. Learned counsel for the appellant has basically relied upon the case of State of Maharashtra and another (supra) in which it was RSA No.2591 of 1984 (O&M) -7- ****** held that “the bar under Section 11 of CPC applies only if the matter directly and substantially in issue in the former suit has been heard and finally decided by a Court competent to try such suit. That clearly means that on the matter or issue in question there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue merely on a technical ground of non-joinder, that cannot operate as res judicata. To my mind, this judgment is not applicable to the facts and circumstances of the present case because in the present case, the matter directly and substantially in issue in the former suit and the present suit was as to whether the plaintiff is the daughter's daughter of Puran Singh so as to succeed to his property which was already adjudicated upon by the learned Courts in the previous suit and the same issue cannot be re-agitated as it has been heard and finally decided by the Court of competent jurisdiction. Of course, if the former suit is dismissed simply on the technical ground, then the decision would not have operated as res judicata, but so far as the issue is concerned, if it has been decided on merits, it would operate as res judicata as Section 11 of CPC specifically provides that “no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court”. In the judgment cited by learned counsel for the appellant, nothing is clear as to whether other issues were also decided or the suit was decided only on the technical ground. On the contrary, in the case of Sheodan Singh (supra), the Supreme Court had held that “we are, therefore, of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal”. In the case of Ramchandra Dagdu Sonavane (dead) by LRs. and others (supra), it was held by the Supreme Court that “it is well known that the doctrine of res judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally comes into play in relation to civil suits. RSA No.2591 of 1984 (O&M) -8- ****** But apart from the codified law, the doctrine of res judicata or the principle of res judicata has been applied since long in various other kinds of proceedings and situations by courts in England, India and other countries. The rule of constructive res judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure and in many other situations also principles not only of direct res judicata but of constructive res judicata are also applied, if by any judgment or order any matter in issue has been directly and explicitly decided, the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceedings between the same parties”. Thus, I am of the opinion that the matter in dispute between the parties in the former suit has been decided issuewise in which issue No.1 was decided in favour of the plaintiff/appellant, but the suit was dismissed on other issues, therefore the same issue cannot be re-agitated by way of a separate suit to overcome the judgment and decree of the former suit which was not challenged up to the highest Court of the country and as such this suit was rightly held to be not maintainable. Moreover, the learned Trial Court had dismissed the suit while recording a finding on issue No.5 that it is barred by limitation which has been upheld by the learned First Appellate Court, but the said finding has not been challenged by the appellant as neither there is any ground framed in the memo of appeal nor arguments have been raised before this Court in this regard. On this ground as well, the present appeal fails. The upshot of my above discussion leads to irresistible conclusion that the present appeal is totally without any merit as there is no question of law much-less substantial involved in it as provided under Section 100 of CPC. Hence, the appeal as well as the application for additional evidence, which was ordered to be heard with the main case, are here by dismissed. Parties are directed to bear their own costs. February 17, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE