R.S.A. No. 4649 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 4649 of 2009 (O&M) Date of decision: 13.1.2011 Mam Raj and others ......Appellants Versus Forest Range Officer and others .......Respondents ********* CORAM: HON'BLE MRS. JUSTICE SABINA Present : Mr. Krishan Singh, Advocate, for the appellants. Mr. Deepak Jindal, DAG, Haryana. **** SABINA, J. Plaintiffs filed a suit for declaration that the entries in the column No.6 of the Jamabandi for the year 1998-99 qua cultivation as well as the entries in the khasra-girdawari w.e.f. 20.3.1995 be declared illegal, null and void and the same were liable to be corrected in favour of the plaintiffs. The case of the plaintiffs was that they were in possession of the suit land since the year 1978 as gair marusi. The plaintiffs had also installed a tubewell in the suit land in the month of January, 1995. Plaintiffs came to know that the defendants were intending to take possession of the suit land from the plaintiffs. Plaintiffs filed a Civil Suit No.44 of 1995 titled as “Mam Raj Versus Forest Range Officer etc”. The suit filed by the R.S.A. No. 4649 of 2009 (O&M) 2 plaintiffs for permanent injunction restraining the defendants from interfering in their peaceful possession was decreed by the trial Court vide judgment and decree dated 29.4.1999 and the appeal filed by the defendants was dismissed vide judgment and decree dated 11.12.2000. During the pendency of the said suit, interim order was passed and during the pendency of the said order the entries in the khasra-girdawari had been changed without any notice or information to the plaintiffs. In the month of June, 2001 plaintiffs contacted the Patwari for obtaining copy of the jamabandi and came to know that in the column of cultivation, the possession of the Forest Department had been depicted. Hence, the suit was filed by the plaintiffs. Defendants, in their written statement, denied the contentions made in the plaint. It was averred that the land in question was acquired by the State and award dated 23.11.1993 was passed in this regard. Mutation No.31 was sanctioned in favour of the defendants. The plaintiffs were not in possession of the suit land after 23.11.1993 i.e. passing of the award by the Land Acquisition Collector, Jagadhari. The value of the tubewell and acquired land had already been paid to the plaintiffs which is recorded in rojnamcha of Patwari at Serial No. 530 dated 13.7.1994. The defendants were owner in possession of the suit land. The judgment and decree passed in the earlier suit, filed by the plaintiffs, were passed on old records and not as per the position existing at the spot. On the pleadings of the parties, following issues were framed by the trial Court :- R.S.A. No. 4649 of 2009 (O&M) 3 1. Whether the plaintiff is in cultivating possession of the suit land as gair marusi since 1978? OPP. 2. Whether the revenue entries regarding the suit land in favour of the defendants are illegal, null and void as alleged ? OPP. 3. Whether the plaintiff has no locus standi to file the present suit? OPD 4. Whether the suit is not maintainable ? OPD. 5. Whether the plaintiff has not served the notice under Section 80 CPC upon the defendant ? OPD. 6. Whether the plaintiff has not come to the court with clean hands ? OPD. 7. Whether the suit is hopelessly time barred ? OPD. 8. Relief. Vide judgment and decree dated 29.3.2008, the trial Court decreed the suit of the plaintiffs. Aggrieved by the said judgment and decree, defendants preferred an appeal and the same was allowed by the Additional District Judge, Yamuna Nagar at Jagadhari vide judgement and decree dated 8.9.2009 and consequently the suit of the plaintiffs was dismissed. Hence, the present appeal by the plaintiffs. Learned counsel for the appellants has submitted that the plaintiffs were held to be in possession of the suit land in a suit filed by them in the year 1995. The said suit was decreed on 29.4.1999. The said judgment and decree passed by the trial Court were upheld in appeal. The defendants had failed to establish that they were in possession of the suit land in the earlier suit filed by the plaintiffs. Learned State counsel, on the other hand, has submitted that in R.S.A. No. 4649 of 2009 (O&M) 4 fact the land in question had been acquired by the State and award had been passed by Land Acquisition Collector, Jagadhari on 23.11.1993. Plaintiffs had been paid compensation in terms of the award. The plaintiffs were not in possession of the suit land. The suit was barred under Order II, Rule 2 of the Code of Civil Procedure (in short 'CPC'). Order II, Rule 2 reads as under :- “2.Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. (2) Relinquishment of part of claim – Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion o his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.” The plaintiffs had earlier filed a suit for permanent injunction which was instituted on 17.1.1995. The entry in the khasra-girdawari was changed w.e.f. 20.3.1995 qua cultivation in favour of the defendants. The plaintiffs should have challenged the said change in the earlier suit by seeking amendment as the said cause of action had arisen to the plaintiffs during the pendency of the earlier suit. However, the plaintiffs did not challenge the change of entry in the khasra-girdawari. The plea taken by the plaintiffs that they were not aware of the change of the entry in the khasra-girdawari cannot be believed. In these circumstances, the learned R.S.A. No. 4649 of 2009 (O&M) 5 Additional District Judge, Yamuna Nagar rightly held that the suit of the plaintiffs was barred under Order II, Rule 2 CPC. The suit land was acquired by the State and award dated 23.11.1993 was passed by the Land Acquisition Collector, Jagadhari. The case of the defendants is that the possession was taken by the defendants after passing of the award and mutation was sanctioned in favour of the defendants. It has been averred in the written statement that the due compensation had also been paid to the plaintiffs in terms of the award passed by the Land Acquisition Collector, Jagadhari. The plaintiffs, thus, may have been in possession of the suit land prior to the passing of the award but once the land had been acquired, the revenue entries were liable to be corrected in terms of the award. In these circumstances, the judgements and decrees passed by the trial Court as well as the lower Appellate Court in a suit filed by the plaintiffs for permanent injunction could not advance the case of the plaintiffs. No substantial question of law arises in this case which would warrant interference by this Court. Dismissed. (SABINA) JUDGE January 13, 2011 Anand