R.S.A.No. 1304 of 2006 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 1304 of 2006 (O&M) Date of decision: 22.9.2009 Raj Singh ......Appellant Versus Ran Singh .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Ashok Singla, Advocate, for the appellant. Mr.Y.P.Malik, Advocate, for the respondent. **** SABINA, J. Plaintiff Ran Singh filed a suit for possession, which was decreed by the Additional Civil Judge (Sr.Divn.), Sonepat vide judgment and decree dated 11.10.2005. In appeal, the said judgment and decree were upheld by the Additional District Judge, Sonepat vide judgment and decree dated 7.2.2006. Hence, the present appeal by the defendant. R.S.A.No. 1304 of 2006 (O&M) 2 Brief facts of the case, as noticed by the lower appellate Court in para Nos. 1 to 3 of its judgment, are as under:- “ The plaintiff on the basis of his title to the plot measuring 140 sq.yards situated within the Abadi Deh of village Janti Kalan, has filed the present suit for possession against defendant Raj Singh son of Randhir Singh. In the year 1984 Harbir Singh filed suit against the plaintiff and Jasbir Singh for permanent injunction regarding the suit property. During the pendency of the suit, plaintiff transferred the suit land through Court decree in favour of Raj Singh-defendant vide judgment and decree dated 20.10.1995. The suit of Harbir Singh, the then plaintiff was dismissed vide judgment and decree dated 27.3.2001. It was held by Civil Court that transfer of suit land by Ran Singh in favour of Raj Singh- defendant during the pendency of civil suit was hit by operation of doctrine of lis pendence. Thus, it was held that the property in dispute was never transferred in favour of Raj Singh. Appeal filed by Harbir Singh, the then plaintiff was also dismissed by the Appellate Court. On account of this litigation as regards the suit property, the possession of the defendant remained over the suit land. The possession of Raj Singh defendant over the plot in dispute measuring 140 sq.yards is claimed to be R.S.A.No. 1304 of 2006 (O&M) 3 illegal one. The plaintiff being owner of the same is entitled to its possession. 2. Learned lower Court vide its judgment and decree under challenge dated 11.10.2005 decreed the suit of the plaintiff and directed the defendant to hand over the possession of the plot in dispute within a period of two months. Aggrieved by the said judgment and decree dated 11.10.2005, passed by the learned lower Court, the defendant has preferred the present appeal. 3. It is pleaded by the defendant-appellant that the suit of the plaintiff is barred by order 2 Rule 2 CPC and it is also barred by the principle of resjudicata. As per previous judgment, the plaintiff is well as the defendant are held to be co-sharer in the land in dispute. Raj Singh defendant was held to be in actual physical possession of the suit land being a bonafide transferee of the same. The court fee affixed on the plaint is claimed to be less. It ought to be affixed on the basis of market value. Another suit titled as Raj Singh versus Ran Singh was earlier instituted in respect of the same property, thus the present suit is liable to be stayed till the decision of that civil suit earlier instituted. It is admitted that suit of Harbir Singh was dismissed by R.S.A.No. 1304 of 2006 (O&M) 4 the civil Court on 22.3.2001. The appeal so filed against the judgment and decree of the civil Court was also dismissed by the then learned Additional District Judge, Sonepat. The defendant has claimed himself to be the owner of the suit property. It is also alternatively pleaded by him that his wrong possession over the suit land has ripened into his adverse possession and by way of adverse possession he has become the owner of the suit plot. It is averred by the defendant-appellant that the suit of the plaintiff deserves dismissal with costs.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiff is entitled to a decree for possession of the suit property as prayed for? OPP 2. Whether the present suit is barred by the provisions of Order 2 Rule 2 CPC and resjudicata? OPP 3. Whether the suit of the plaintiff is not maintainable in the present form nor the plaintiff has any locus standi to file the present suit? OPD 4. Whether the present suit is liable to be stayed u/s 10 of CPC? OPD 5. Relief. ” R.S.A.No. 1304 of 2006 (O&M) 5 After hearing learned counsel for the parties I am of the opinion that the present appeal deserves to be dismissed. The plaintiff had filed a suit for possession of the plot measuring 140 sq. yards. Admittedly, Harbir Singh had filed a suit for permanent injunction against plaintiff Ran Singh and Jasbir Singh. During the pendency of the suit, plaintiff Ran Singh transferred the plot in dispute through Court decree in favour of defendant Raj Singh vide judgment and decree dated 20.10.1995. Defendant Raj Singh was impleaded as defendant No.3 in the said suit on an application moved by him. The said suit was dismissed by the trial Court vide judgment and decree dated 27.3.2001. The decree dated 20.10.1995 passed on the basis of admission of defendant was set aside as having been hit by the principle of list pendence . Thus, no title passed in favour of Raj Singh by virtue of decree dated 20.10.1995. The appeal filed by Harbir Singh was dismissed by the Additional District Judge vide judgment and decree dated 13.12.2003. The possession of the suit property admittedly remained with Raj Singh-defendant/appellant. The Appellant, thus, could not become owner of the suit property by way of adverse possession as his possession never remained hostile against the true owner. Rather the possession of the appellant became unauthorized and illegal because the decree on the basis of which the appellant claimed to be owner of the plot in dispute was set aside vide judgment and decree dated 27.3.2001. In these circumstances, the R.S.A.No. 1304 of 2006 (O&M) 6 Courts below had rightly decreed the suit of the plaintiff. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE September 22, 2009 anita