RSA No.215 of 1981 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 215 of 1981 Date of Decision: August 24, 2009 Raj Kumar and others ...... Appellants Versus Chaman Lal ...... Respondent Coram: Hon'ble Mr. Justice Ajay Tewari Present: Mr.Mukul Aggarwal , Advocate for the appellants. Mr. Amarjit Markan, Advocate for respondent No.1. Mr. K.R.Dhawan, Advocate for respondents No.2 to 4. **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Ajay Tewari, J. This appeal has been filed against the judgment and decree of the learned lower Appellate Court partly decreeing the suit of the respondent wherein it has been held that even though the respondent is not owner of the half share claimed by him yet he would be owner of at least 1/7th share. Learned counsel has proposed the following questions:- i) Whether the present suit of the respondent-plaintiff is barred under Explanation IV Section11 of the Code of Civil Procedure in lieu of the established fact that earlier suit of the respondent-plaintiff with regard to the suit land stands RSA No.215 of 1981 dismissed upto the level of this Hon'ble Court? ii)Whether the present suit of the respondent-plaintiff is maintainable in view of the statutory bar enshrined in Order 2 Rule 2 of the Code of Civil Procedure? iii)Whether the present suit of the respondent-plaintiff, which has been filed after a lapse of 13 years, is within its limitation period? iv)Whether in lieu of the overwhelming evidence available on the record ( Ex.D-2 to Ex.D-6) and categorical admission by the respondent-plaintiff himself, the appellant has become owner by way of adverse possession? v) Whether the entire approach of the learned lower Appellate Court in reversing the well reasoned judgment decree of the trial court is erroneous,illegal and can be sustained in the eyes of law? vi)Whether the evidence on the record has been misread and misinterpreted by the learned lower Appellate Court? vii)Whether all the submissions made on behalf of the present appellant were taken into consideration by the learned lower Appellate Court? It is not disputed that the respondent had earlier filed a suit claiming that he had inherited the entire remaining property of Lala Narain Dass on the basis of will. Learned counsel for the respondent is not in a position to deny that in that earlier suit he could have taken the alternative plea to the effect that in case the will was not proved then the appellant had become owner of the suit land by way of survivorship. Learned lower Appellate Court has wrongly brushed aside this cogent argument by mentioning that at the time of the earlier suit the mutation had not been sanctioned. In my opinion the sanctioning of mutation would not give rise to a fresh cause of action. In the circumstances the questions No. (i) and (ii) proposed RSA No.215 of 1981 have to be held in favour of the appellants and it has to be held that the second suit filed by the respondent was not maintainable. Needless to say that once it has been held that the second suit filed by the respondent was not maintainable it would also be necessary to hold that any finding recorded on those issues would also be completely effaced. Once questions No. (i) and (ii) are held in favour of the appellants, the question regarding limitation and adverse possession as raised in questions No. (iii) and (iv) need not be answered. Questions No. (v), (vi) and (vii) are pure questions of fact. Consequently this appeal is allowed and the suit of the respondent that he has become owner of the half share is dismissed being not maintainable. (AJAY TEWARI) JUDGE August 24, 2009 sunita