Civil Revision No. 5869 of 2006 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 5869 of 2006 Date of decision : 15.1.2010 Amrat Singh Chauhan ....Petitioner Versus Dass Ram ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. I.K.Mehta, Senior Advocate with Mrs.Ranjit Me4hta, Advocate for the petitioner. Mr. Lokesh Singhal, Advocate for respondent. S. D. ANAND, J. The petitioner herein filed a civil suit against the respondent for a declaration and also permanent injunction, as a consequential relief thereof. The allegations made by him in the course thereof were as under:- The land in suit, owned by Gian Chand and Ganeshi, was under the tenancy of one Dalpat on a fixed rent for the last more than 50 years. On the death of Dalpat, the tenancy rights therein were inherited by Naresh and his other sons. His other sons relinquished their tenancy rights in that land, which thereby came to be inherited by Naresh only who came into possession of that land in place of his father Dalpat. Naresh aforementioned filed a civil suit in the Court of Assistant Collector Ist Grade to obtain a decree about the acquisition Civil Revision No. 5869 of 2006 -2- **** of the occupancy rights in that land. That suit was decreed by the Assistant Collector Ist Grade, Ballabgarh, on 23.1.991. Naresh aforementioned thereby became owner of that land and Gian Chand and Ganeshi ceased to have any right or title in it. Naresh aforementioned filed a civil suit against Chandrawati etc. for a declaration/permanent injunction in respect of certain land. That suit came to be decreed by the Court of learned Civil Judge (JD), Faridabad, and he was declared to be owner in possession of that land under the provisions of the Punjab Occupancy Tenants (Vesting of Proprietary Rights) Act . The array of defendants in that suit included Dass Ram (respondent herein) as well and also Gian Chand and Ganeshi, both of whom contested the suit. Thereafter, Naresh sold out 15 kanals 0 marlas area to Jai Ram, vide registered sale deed dated 18.12.1991 and also handed over the possession of that land to him. A mutation also came to be sanctioned in favour of Jai Ram on the basis thereof. Jai Ram aforementioned sold that land to Sanjay Singhal and Shiv Kumar Tyagi, vide sale deed dated 7.12.1992. The possession of that land was also handed over to the vendees. A mutation, too, was sanctioned on the basis thereof. Sanjay Singhal further sold that land to Salesh Yadav vide registered sale deed dated 27.6.1995 and a mutation came to be sanctioned on that basis. Salesh Yadav, aforementioned sold that land to the plaintiff, vide registered sale deed dated 16.10.1996. The possession of that land was also handed over to the plaintiff and a mutation too was sanctioned on the Civil Revision No. 5869 of 2006 -3- **** basis thereof. Name of one Tillu Ram came to be entered in the Jambandis for the year 1990-91 onwards in the column of cultivation, as being in possession of that land. That entry was invalid as was the deletion of Dalpat and Naresh. Therefrom, that entry in favour of Tillu Ram is not binding upon the plaintiff and Naresh . The legal representatives of Tillu Ram, alongwith one Baljit Singh, filed a civil suit against Naresh in respect of land in suit. Along therewith they also filed an application under Order 39 Rule 1 and 2 C.P.C. The claimed to be in possession of that land; while Baljit Singh resisted that suit on an averment that Gian Chand and Ganeshi had entered into an agreement to sell off that land to him. That plea was ordered to be dismissed, vide order dated 27.11.1991 and it was held that it was Naresh who was in possession of that land. An appeal filed by Baljit and Lrs of Tillu Ram against that order was rejected by the learned Addl. District Judge, Faridabad, vide order dated 8.8.1993. That suit ultimately came to be dismissed, vide judgment and decree dated 17.5.1995. In that manner, the adjudication in that Civil Suit was to the detriment to the legal representatives of Tillu Ram. Dass Ram aforementioned filed a civil suit against Gian Chand Ganeshi for specific performance of the land in suit on an allegation that vendor aforementioned had agreed to sell one half share of the land to him. The suit came to be dismissed, vide judgment and decree dated 27.10.1998 and an appeal filed by Dass Civil Revision No. 5869 of 2006 -4- **** Ram aforementioned came to be allowed by the then learned Additional District Judge, Faridabad, vide judgment and decree dated 20.4.2001. The plea raised by the plaintiff Naresh in the present suit was that the impugned judgment and decree dated 20.4.2001 and 27.10.1998 are not binding upon him in view of the fact that his proprietary and possessory rights had been perfected with the acquisition of tenancy rights therein. It was on the above factual premises that the plaintiff applied for the grant of decree for a declaration to the effect that he is owner in possession of the land in suit. Also applied for was a decree for a declaration to the effect that judgment and decree dated 27.10.1998 are invalid and not binding upon him. As a consequential relief declaration aforementioned, the plaintiff also sought the restraint of respondent Dass Ram from interfering in his possession in that land. It is the maintainability of that suit which was challenged by the defendant-respondent by filing an application, whereby a plea was raised for rejection of the plaint in terms of Order 7 Rule 11 C.P.C. That plea came to be allowed by the learned Trial Court. The plaintiff-petitioner is in revision against that order. It is vehement contention of the learned counsel for the petitioner herein that the learned Trial Court could not have rejected the plaint in terms of order 7 Rule 11 C.P.C. without having the pleadings of the parties on record. The plea raised thereby is that the learned Trial Court ought to have proceeded to get the pleadings Civil Revision No. 5869 of 2006 -5- **** of the parties on record and, then, proceed to dispose of the objection with regard to suit being barred by resjudicata. It is apparent, from a perusal of the material obtaining on the file, that in addition to the plea filed by defendant-respondent, there also was a plea that suit is barred by the provisions of Section 11 C.P.C. There is indeed material obtaining on the file supportive of averment on behalf of the respondent that the case might ultimately warrant dismissal as being barred by provisions of Section 11 of the C.P.C. In raising that plea, the learned counsel for the defendant-respondent invited the attention of this Court to the order dated 23.7.2007 passed by a Single Bench of this Court. The petitioner herein had filed objections to the execution of the decree dated 21.4.2001 aforementioned. The very allegations which find mention in the plaint of the suit, were dismissed by the learned Executing Court. It is vide order dated 23.7.2007 that a revision petition filed by the petitioner herein against that order was rejected. In that very context, learned counsel also relied upon certain facts- based observations recorded by the learned Ist Appellate Court, vide judgment and decree dated 20.4.2001 (Annexure P-1). It is apparent, from a perusal of above discussion, that the learned Trial Court was not on a firmer footing when it ordered the rejection of the plaint in terms of Sub Clause (d) of Order 7 Rule 11 C.P.C. In fact, those provisions are not attracted at all in the given case, particularly when there is a specific provision of law i.e. Civil Revision No. 5869 of 2006 -6- **** Section 11 of the Code of Civil Procedure dealing with the averred eventuality. The petition shall stand allowed. The impugned order shall stand set aside. The learned Trial Court shall proceed to get the pleadings of the parties on record. If a plea on point of resjudicata is taken up in the course of the pleadings, the learned Trial Court shall dispose of that question at the trial. In that context, the learned Trial Court may consider the feasibility of treating that issue as preliminary. The parties, through their learned counsel, are directed to appear before the learned Trial Court on 29.1.2010. January 15,2010 (S. D. ANAND) Pka JUDGE