RSA No.850 of 2009 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.850 of 2009 Date of Decision: 21.07.2010 Nachattar Singh .……Appellant Versus Lajja Ram and another ……Respondents Coram:- HON’BLE MR. JUSTICE L. N. MITTAL. Present: Mr. Harish Sharma, Advocate for the appellant. Mr. Adish Gupta, Advocate for respondent No.1. Mr. Vishal Gupta, Advocate for Mr. G. S. Attariwala, Advocate for respondent No.2. L. N. MITTAL, J (ORAL) Nachattar Singh-defendant No.2 has filed the instant second appeal. Suit was filed by Lajja Ram-respondent No.1 against Municipal Committee, Kharar-defendant No.1/proforma respondent No.2 herein and against the appellant-Nachattar Singh-defendant No.2 alleging that the disputed quarter No.5, Mundi Kharar Colony was allotted to the plaintiff by Municipal Committee vide allotment letter No.5091 dated 17.06.1991 as plaintiff belongs to Ramdasia community. Allotment was made under Scheme of alloting houses to houseless persons. The allotment was made by draw of lots. The plaintiff had deposited Rs.1000/- on 24.04.1990 and deposited further amount of Rs.1500/- on 27.06.1991 after the allotment. However, defendant No.2 forcibly occupied the disputed quarter and, therefore, defendant No.1-Municipal Committee could not deliver its RSA No.850 of 2009 -2- possession to the plaintiff. Possession of defendant No.2 over the disputed quarter is illegal and as trespasser, without any right, title or interest therein. The plaintiff earlier filed suit on 02.03.1993 against the defendants for mandatory injunction. In the said suit, all issues were decided in favour of the plaintiff, but the suit for mandatory injunction was held to be not maintainable as the plaintiff was required to file suit for possession. Accordingly, the plaintiff filed the instant suit for possession. Defendant No.1 in his written statement admitted that the suit quarter was allotted to the plaintiff. Defendant No.1, however, pleaded that the plaintiff did not comply with other formalities after allotment and did not come to the office of defendant No.1 to complete the formalities and, therefore, quarter was allotted to defendant No.2. Defendant No.2 was proceeded ex parte in the trial Court. Learned Civil Judge (Junior Division), Kharar vide judgment and decree dated 22.08.2006 dismissed the plaintiff's suit as barred by res judicata. However, first appeal preferred by the plaintiff has been allowed by learned District Judge, Ropar vide judgment and decree dated 21.08.2008 and thereby suit filed by the plaintiff has been decreed. Feeling aggrieved, defendant No.2 has preferred the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the appellant vehemently contended that the suit is barred by res judicata. The contention cannot be accepted. No plea of bar of res judicata was raised in the pleadings. RSA No.850 of 2009 -3- Question of res judicata is a mixed question of law and fact. In the absence of pleadings, the plaintiff's suit cannot be held to be barred by res judicata. There is also no evidence to depict that the suit is barred by res judicata. Judgment and pleadings of the previous suit have not been produced in evidence in the instant suit to depict that the instant suit is barred by res judicata. Faced with the aforesaid situation, learned counsel for the appellant contended that the suit is barred by res judicata in view of plaintiff's own admission regarding institution of the previous suit. However, this plea is also untenable because admission of the plaintiff has to be taken as a whole. According to plaintiff's pleadings and evidence, in previous suit for mandatory injunction filed by him, all issues were decided in his favour except that the said suit for mandatory injunction was held to be not maintainable in that form. If that be so, claim of the defendants would be barred by res judicata and the suit of the plaintiff has to be decreed as his case stood proved even in the previous suit. Perusal of judgment dated 26.10.1998 passed by trial Court in the said suit as shown by counsel for the plaintiff-respondent No.1 also reveals that on merits possession of defendant No.2 over the suit plot was held to be illegal and unauthorized but relief was declined to the plaintiff as suit for mandatory injunction was not maintainable and suit for possession had to be filed. Thus examined from any angle, it cannot be said that the instant suit is barred by res judicata. This contention of bar of res judicata is beyond pleadings and is also not substantiated by any material on record. Faced with the aforesaid situation, learned counsel for RSA No.850 of 2009 -4- defendant No.2-appellant contended that the suit quarter stood allotted to defendant No.2 and, therefore, plaintiff is not entitled to possession thereof. The contention cannot be accepted because no such pleading on behalf of defendant No.2-appellant was raised. Of course, there is such a plea raised by defendant No.1 in its written statement. However, the said plea has not been substantiated. Harjit Singh PW-2 is Clerk from the office of Municipal Committee, Kharar-defendant No.1. He proved allotment letter of the suit quarter in favour of the plaintiff, as has also been admitted by defendant No.1 in its written statement. He also stated from record that allotment of suit quarter still stands in the name of the plaintiff and this quarter was never allotted to defendant No.2 as per record. Consequently, plea taken by defendant No.1 in the written statement that the suit quarter had been allotted to defendant No.2 is not substantiated and stands negatived by testimony of Harjit Singh Clerk PW-2 made on the basis of record of defendant No.1. On the other hand, documentary evidence produced by Harjit Singh PW-2 reveals that the suit quarter was allotted to the plaintiff and allotment still stands in his name. Consequently, possession of defendant No.2 over the suit plot is illegal and unauthorized and the plaintiff being allottee thereof is entitled to possession thereof. Learned counsel for the appellant contended that Harjit Singh Sodhi DW-1 examined by defendant No.1 stated that the quarter was allotted to defendant No.2. However, this witness did not produce any record regarding allotment of the disputed quarter by defendant No.1 to defendant No.2 and consequently mere oral statement of this witness that the quarter was allotted to defendant RSA No.850 of 2009 -5- No.2 carries no weight particularly in the face of testimony of Harjit Singh PW-2, who stated on the basis of record brought by him that the allotment of the suit quarter still stands in the name of the plaintiff and also that the said quarter was never allotted to defendant No.2. It may be added that Harjit Singh PW-2 was not even cross- examined in spite of opportunity and, therefore, statement made by him in examination-in-chief that the allotment of the quarter stands in the name of the plaintiff and that quarter was never allotted to defendant No.2, was impliedly admitted as correct. Moreover, allotment of the quarter to plaintiff was never cancelled and, therefore, there could be no allotment of the quarter to defendant No.2 without cancellation of its allotment to the plaintiff. Thus, examined from any angle, it is manifest that plaintiff has successfully proved his case. There is no illegality in the impugned judgment of the lower appellate Court. The said Court is the final Court of fact. The finding recorded by the lower appellate Court does not suffer from any illegality or perversity warranting interference in second appeal. The said finding is not shown to be based on any misreading or misappreciation of evidence. No question of law, much less substantial question of law, arises for determination in the instant second appeal. The appeal lacks any merit and is accordingly dismissed. 21.07.2010 ( L. N. MITTAL ) A. Kaundal JUDGE