IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) R.S.A. No.2958 of 2000 .... Satbir. ....... Appellant through Shri Vipin K.Bali, Advocate. Versus Mange Ram and others ....... Respondent nos. 1 to 5 through Shri C.B. Goel, Advocate. Respondent nos. 6 to 7 ex parte. (2) R.S.A. No.2020 of 2005 .... Satbir. ....... Appellant through Shri Pritam Saini, Advocate. Versus Mange Ram and others ....... Respondents through Shri C.B. Goel, Advocate. Date of Decision: 29.4.2009 CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers 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? .... R.S.A.No.2958 of 2000 -2- .... Mahesh Grover,J. This order will dispose of the above mentioned two Regular Second Appeals as they relate to one suit property and are inter se between the same parties. Since the facts involved in both these appeals are inter- connected, they are being noticed in continuity rather then being recorded separately. The suit property is a residential house bearing no. 12, in Ward No.7, Gharaunda, District Karnal. It was in unauthorised occupation of the predecessor-in-interest of the present appellant- Satbir. On 30.4.1980, a suit bearing no.16 was filed by Mokha Ram alias Mokha, predecessor-in- interest of respondent nos. 1 to 5 in both the appeals, against Nathlu son of Nandia, Kishna son of Nathlu, Pala, Mahavir and Ishra sons of Kishna (proforma respondent nos.6 to 10 in R.S.A.No.2958 of 2000) for possession of the suit property, which was decreed on 21.3.1985. Against the said judgment & decree, Nathlu and others filed an appeal in which an order dated 18.7.1985 was passed by the District Judge, Karnal directing the lower Court to return a clear finding regarding the ownership as well as possession of the suit property. Thereafter, the lower Court sent its report dated 14.8.1985 and after considering the entire matter, the appeal of Nathlu etc. was dismissed on 9.10.1985. The Regular Second Appeal filed against the appellate judgment was also dismissed by this Court. Thereafter, in execution of the aforesaid decree, it was alleged by respondent nos. 1 to 5 that they had taken possession of the suit property on 17.4.1986 (which fact R.S.A.No.2958 of 2000 -3- .... is, however, disputed by the learned counsel for the appellant as, according to them, mere warrant of possession was issued and possession was not taken). After that, Civil Suit No.6 of 1987 was filed by the appellant against Mokha alias Mokhi for declaration with a consequential relief of permanent injunction while impleading Nathlu and others as proforma defendants. The decree passed in Civil Suit No.16 of 1985 was sought to be declared as null, void and illegal. Nathlu and others appeared and filed written statement admitting the claim of the appellant, while Mokha alias Mokhi was proceeded against ex parte. That suit was accordingly decreed on 30.4.1987. Mokha Ram alias Mokhi filed an application under Order 9 Rule 13 read with Section 151 of the C.P.C. for setting aside exparte decree dated 30.4.1987, which was accepted vide order dated 2.8.1988. The suit then progressed. During the course of proceedings, Mokha Ram alias Mokhi died and his legal representatives were brought on record. Ultimately, the suit was dismissed on 23.8.1997 by the Court of Civil Judge (Junior Division), Karnal (hereinafter referred to as `the trial Court') and the appeal preferred by the appellant was also dismissed on 7.12.1999 by the Court of Additional District Judge, Karnal (described hereinafter as `the First Appellate Court'). R.S.A.No.2958 of 2000 has been preferred by the appellant challenging the judgments & decrees dated 23.8.1997 and 7.12.1999. C.M.No.5324-C of 2000 was moved under Order 41 Rule 27 read with R.S.A.No.2958 of 2000 -4- .... Section 151 of the C.P.C. for permission to lead additional evidence by way of placing attested copy of judgment dated 21.3.1985 on record. It is pertinent to mention here that during this interregnum, since it was the case of Mokha Ram alias Mokhi that the possession of the suit property had been taken over from him by Nathlu etc. and they were intending to set up a flour-mill therein, he filed Civil Suit No.165 of 1985 against them as well as against S.D.O., Haryana State Electricity Board, Sub Division, Gharaunda for permanent injunction. That suit was decreed on 29.8.1989 and the appeal was dismissed on 7.1.1993. The copies of those judgments are as Exhibits D6 and D5, respectively, on the record of the trial Court in Civil Suit No.6 of 1987 out of which R.S.A.No.2958 of 2000 has arisen. On 17.3.2009, C.M. No.3408-C of 2009 was moved by the appellant for formulating a question of law to be considered in the appeal. That application was allowed on 18.3.2009 and the following question of law was framed for determination by this Court:- “Whether the applicant/appellant is bound by the judgments and decrees passed in the previous litigation where subject matter in dispute was same but the applicant/appellant was not party in that matter? In the year 2000, respondents- Mange Ram and four others instituted Civil Suit No.443 for possession of the suit property against the appellant. That suit was decreed by the trial Court on 10.9.2003 and the appeal preferred by the appellant against the trial Court's judgment and R.S.A.No.2958 of 2000 -5- .... decree was dismissed by the First Appellate Court on 25.1.2005. R.S.A. No.2020 of 2005 has been filed by the appellant against the judgments and decrees dated 10.9.2003 and 25.1.2005 of the trial Court and the First Appellate Court. On 4.6.2007, the parties in R.S.A.No.2020 of 2005 were directed to maintain status quo regarding the property in dispute till further orders. This appeal was admitted on 28.7.2007 and was ordered to be heard along with R.S.A.No.2958 of 2000. With the aforementioned undisputed facts, these appeals have come up before me for disposal. Learned counsel for the appellant contended that the earlier decree dated 21.3.1985 in Civil Suit No.16 of 1985 was not binding on the rights of the appellant as he was not a party to the same. He further contended that the appellant being in continuous possession of the suit property along with his predecessors-in-interest for the last more than 50 years, he had became owner by way of adverse possession. For the purpose of clarification, the relevant extract of the pleadings as set out by the appellant in his plaint of Civil Suit No. 6 of 1987 and to which reference has been made by the learned counsel for the appellant, is reproduced below:- “4. That the defendant Mokha @ Mokhi (now deceased) with an ulterior motive of depriving the plaintiff of his ownership and possessory rights in the suit property filed a suit for possession qua suit property against Nathlu son of Nandia, Kishna son of Nathlu, Pala,Mahavir and Ishra son ofKishna, R.S.A.No.2958 of 2000 -6- .... the present proforma defendants No. 6 to 10 titled as Mokha Ram alias Mokhi Vs. Nathlu and others alleging himself to be owner of the suit property on false and flimsy grounds and obtained a decree for possession qua the same on 14.8.1985 from the court of Shri R.C.Godara, HCS, the then SJIC, Karnal by playing fraud upon the plaintiff and the Hon'ble Court itself by mis-representation of actual facts. Moreover (sic. More) the plaintiff has not been seeking any relief against defendants No. 6 to 10. The alleged decree dated 14.8.1986 in civil suit No.16 of 1985 itself is illegal, null, void, inoperative, ineffective, result of fraud, misrepresentation of facts, not binding upon the plaintiff's rights of ownership and possession, same is liable to be set aside on the following grounds amongst other grounds:- i) That the plaintiff was not at all party to the suit No.16 of 1985 titled as Mokha alias Mokhi Vs. Nathlu and others. ii) That the plaintiff is still in actual, peaceful and lawful as well as uninterrupted and undisturbed possession of the suit property as owner without any sort of interruption or interference by any body including the defendant no.1. iii) That the possession over the suit property of the predecessors-in-interest of the plaintiff was adverse, as well as open, hostile to all concerned i.e. actual, R.S.A.No.2958 of 2000 -7- .... peaceful, lawful, uninterrupted and undisturbed over more than 50 years and has ripened into ownership. iv) That the alleged decree dated 14.8.1985 is result of fraud and misrepresentation of facts, because the defendant no.1 (Mokha Ram @ Mokhi now deceased) is not the owner of the suit property.” Learned counsel for the appellant, thus, argued that it is the case of the appellant throughout that decree dated 21.3.1985 is not binding upon him as he was not a party to the earlier proceedings;that he is in actual physical and peaceful possession of the suit property without any interruption from any quarter; that he has become owner thereof by way of adverse possession and that aforesaid decree was a result of fraud. On the other hand, learned counsel for respondent nos. 1 to 5 argued with great emphasis on the facts, that the earlier suit was contested hotly by the predecessors-in-interest of the appellant wherein they were arrayed as defendants. He contended that Nathlu was the grand-father of the appellant while Kishan was his father. He further contended that the brothers of the appellant were impleaded as defendants and the only reason why the appellant was not impleaded as a party, was that he was a minor at that point of time,which is also reflected from his statement which has been recorded in the instant proceedings when he appeared as PW1 and gave his age as 25 years implying thereby that in the year 1980 when the earlier suit was filed, he would have been a minor and, therefore, it was not necessary to implead him as he was adequately represented by his natural guardians. R.S.A.No.2958 of 2000 -8- .... Learned counsel for respondent nos. 1 to 5 submitted that the findings pursuant to the decree dated 21.3.1985 which culminated in a Regular Second Appeal, have attained finality. He further submitted that besides, Mokha Ram alias Mokhi, the predecessor-in-interest of respondent nos. 1 to 5, had to take recourse of filing civil suit no.165 of 1985 for permanent injunction and civil suit no.443 of 2000 for possession, which also stood decreed and from which R.S.A.No.2020 of 2005 has fructified. It was, thus, contended that respondent nos. 1 to 5 have been deprived of their rightful possession of the suit property while the appellant was enjoying the same without any right, title or interest and he being a trespasser has no authority to remain in possession thereof. I have thoughtfully considered the rival contentions and have perused the impugned judgments, as also the record. In order to determine the controversy between the parties, R.S.A.No.2958 of 2000 needs to be decided first as it pertains to the suit filed by the appellant in which he had prayed that decree dated 21.3.1985 be declared as null & void and not binding on his rights as he was not a party thereto and that he had become owner of the suit property by way of adverse possession. If the undisputed facts are seen, then a glaring aspect which stares in the face of the Court is that the proceedings in civil suit no.16 of 1985 in which decree dated 21.3.1985 was passed, was unsuccessfully contested by the predecessors-in-interest of the appellant. He was a minor at that point of time and was not necessarily to be impleaded as his interests R.S.A.No.2958 of 2000 -9- .... were adequately defended by his grand-father, father and brothers. The aforesaid decree attained finality when the Regular Second Appeal against the judgments of the Courts below was dismissed. The appellant thereafter was left with no right in the suit property and any possession obtained by him subsequently could, at best, be termed to be illegal. That apart, he has not been able to show an iota of evidence regarding his claim to the suit property and the only inference which can be drawn from the material which has come on record, is that he was a forcible usurper of the property. Learned counsel for the appellant laid much emphasis on the electricity and water charges bills, house tax receipts and other related records to contend that the appellant has been in possession of the suit property and from this documentary evidence, it should be inferred that the appellant was in possession. I am afraid, the aforesaid contention is to be noticed only to be rejected. These documents pertain to the year 1992 when the appellant had already usurped the suit property and the predecessor-in-interest of respondent nos. 1 to 5 was continuously litigating against him. Therefore, no benefit can be derived by the appellant from such documents which only reflect his perpetuation of the unlawful possession. Similarly, the plea of the appellant that he had become owner by way of adverse possession is hopelessly hollow. The suit was filed by the predecessor-in-interest of respondent nos. 1 to 5 against the predecessors-in-interest of the appellant in the year 1980 which was decreed. It is the case of respondent nos. 1 to 5 that pursuant to the decree R.S.A.No.2958 of 2000 -10- .... passed in that suit, possession of the suit property was obtained,but this fact is disputed by the learned counsel for the appellant,who stated that it was a mere paper transaction. Be that as it may, such possession which was seriously contested by respondent nos. 1 to 5 as well as by their predecessor-in-interest can hardly result in possession being declared to be hostile and open so as to declare him to be in adverse possession of the suit property. Looking at it from any angle, the entire sequence of events points out to only one fact that the appellant is an usurper of the suit property and has no right to it. Therefore, the question of law that has been framed and reproduced above is answered against the appellant and in favour of respondent nos. 1 to 5. The appeal is without any merit and is liable to be dismissed with costs. As a logical consequence, the questions of law formulated by the appellant in R.S.A. No.2020 of 2005 and which are reproduced below, are not substantial questions of law and do not require determination by this Court as the questions of fact have been decided by the Courts below:- 1. Whether the subsequent suit for possession would be maintainable when already the suit qua the same property, same dispute and between the same parties, was pending before this Hon'ble Court? 2. Whether the Courts below have exceeded their jurisdiction in not staying the proceedings till the earlier suit was R.S.A.No.2958 of 2000 -11- .... finalized between the parties? 3. Whether the appellant has become owner in possession of the property in dispute? 4. Whether the judgments and decrees passed by the courts below are contrary to the settled principles of law and liable to be set aside? In the result, both these appeals are dismissed along with costs of Rs.50,000/- in each of them as they are devoid of any merit and the appellant is clearly a usurper of the rights to the property of the respondents. April 29,2009 ( Mahesh Grover ) “SCM” Judge