78 0 CRe N03483of2002 1 1r IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR N003483of2002 Date ofDecisionl 04092009 1 Shashi Jain Dlo Shri Ishwar Dass Jain 2 Harsh VijayJain Slo Shri Ishwar Dass Jain 1 r Both permanentresident of4314 Jain Street Panipatat present residing at 0 0 eeRevisionPetitioners I 0 Versus Jumna Bai widow ofJawahar La4 resident ofShiv Nagar near Z Khadi Ashram Ga Te Road Panipate C I CORAM2 HONBLE MR JUSTICE SHAM SUNDER m7 Present Mse Shashi Chawla Advocate Z for the Mr Sandeep Chhabra Advocate for the SHAM SUNDER Je 9r R 14 This 1S directed againstthe Order dated 232002 renderedby the Court of Civil Judge unior Division9Panipat vide which it dismissedtheapplication under Order 14 Rule 50f the Civil ProcedureCode for strikingoff the issue as to whetherthe defendant now respondenhad becomethe owner by way of adversepossessionfiled by theplaintiffsnow . Anita 2012.08.03 15: 58 True Scanned Copy Of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 79 7 0 CR N034830f2002 2 e 2 The case of the was that in Civil Suit Nol of 1981 an issue was framed as to whether the defendanlow had becomeowner by way ofadverse It was stated that the suit was decided on 4981 wherein a speciflcfindingwas recordedby the trial Court that the defendant ow had not becomethe owner ofthe propertyin disputebyway ofadverse It was 8lrther stated that an appealwas preferredby Jumna Bai 0 C againstthat findingof the trial Court in the first I C5 Appellate Court The first AppellateCourt vide judgment dated 92984 accepted the same appeaObut did not upsetthe flndingthat she had not Z becomethe owner by way of adverse Thereafter a Regular SecondAppealwas tIledin this Courtbythe r which was dismissed on 15101984 in limine SLP No1803 of 1987 was I 06 also filed by the plaintiffswhich was dismissed on 188 1995 It was lrther statedthat thefindingrecorded in the aforesaidsuit that Jumna Bai 7 Z had not becomethe owner byway of adverse operated as res 0m judicataIt was further statedthat such an issue could not be againbyJumna Bai in the presentsuit for possession filed againsther by the It was statedthat an applicationfor striking off the issue regarding adversepossessionwas moved which was wronglydismissedvide the order referredto above 3 The application was contestedby the It was statedthat the same had been Oled with malafide intention It was further stated that the matter 111 controversy111the suit could only be decidedafter the partieslead evidence It was 8irther stated that the were required to prove that the previousSUlt . Anita 2012.08.03 15: 58 True Scanned Copy Of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 80 Vl 1 4 0 CeR No483 of2002 3 e was decided on merits Accordingl7 a prayer was made that theapplication be dismissed 4 After hearing the Counsel for thepartiesand on goingthrough the record of the case the trial Court dismissedthe applicationvide the orderimpugned 1 5 Feelingaggrieved the instant has been flled r bythe 0 C 6 I have heardthe Counsel for thepartiesandhave gonethrough C5 therecordofthe case carllly I 7 The Counsel for the submitted that a Z specificfindingWaS recorded 111 the earlier suit in which Jumna Bai r was a partythat she had not become owner of the jn disputeby way of adverse possessionand that matter was I 05 decideduptotheApexCourt It was hirther submittedthat shecould not be allowedto rake up the same controversyin the presentsuit It was 61rther 7 Z submitted that the decision in the earlier suit on the issue of adverse 1 would operateas resudicata againsther It was further tLc submittedthatluialCourt was wrong in not strikingoff the issue of adverse in the suit for possessionShe81rthersubmittedthat since the matter directlyand lll lSSue in the presentsuit has already 1 1 been heard and decided in the previoussuit on rnerits such decision 1 1 operatesas resudicata She also placedreliance on Dadu Dayalu Mahasabha Jaipur Trustl Vse Mahant Ram Niwas and another 2008 AeIeReSCl 2187 Swamv Atmananda 8 others Vs Sri Ramakrishna A4R Tapovanam others120051 e SCl 2392 and Saroop SinghVse Surian Singh 2002141Indian Civil Cases 766 in support of her . Anita 2012.08.03 15: 58 True Scanned Copy Of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 81 0 CR N03483of2002 4 k contention 8e On the other hand the Counsel for the submitted that in the earlier suit no doubt an lssue with regardto the factum as to whetherJumnaBai had become owner of the propertyin disputebyway of adverse was struck He 81rthersubmittedthat the suit against JumnaBai was not inadvertently dismissedbythe trial Coun and she filed an appealwhich was accepted to the limited extent that the trial Court 0 C should have dismissedthe suit againsther but inadvertently did not do SO I C5 the suit againstJamuna Bai stood dismissed He 81rther I submittedthat since the suit againstJamuna Bai was dismissed in other Z words the decision was in her favour any findingrecorded on any issue adverseto her did not operateas rejudicataas she had no remedyof filingan appealagainstthatadverseOndingon a particular issue especially I 08 when the decision of the main case went in her favour He hirther submittedthat the plaintiffsled evidence in the case and concluded the em Z same He further submittedthat the matter is required to be decidedaer the partieslead evidence He further submittedthat trial Court was thus rightin dismissingtheapplication vide theorder impugned 9 After giving my consideration to the rival contentionsadvanced by the Counsel for the partiesin my considered opinionthe revisiolletition deservesto be dismissed for the reasons to be recordedhereinafter The Counsel for the admitted thatthe have alreadyled their evidence and closedthe same In case the had any grievancewith 1 regard to thestrikingof an issue of adverse on thegroundthat the earlier decision operated as rejudicata lt was requiredof them to . Anita 2012.08.03 15: 58 True Scanned Copy Of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 82 0 CRa N003483of2002 5 1 rnove an application for strikingof an issue ln that regardand gettingthe r same treated as preliminary1SSue No such attemptwas made by the whether the decision on a particular issue in an earliersuit operated as rejudicatathe pleadings of theparties in theprevious suit the issuesstruck in the previoussuit and the judgment and decreeof theprevioussuit were required to be produced and C proved on record Onlyafter goingthrough the samethe Court could come 0 C to the conclusion as to whether the previousdecision operated as rese I 0 judicata or not In other words such an issue could onlybe provedby leading evidence Even otherwise as statedabove the earlier suit was flled Z by the for partitionwherein Jumna Bai C took up thepleathat shehadbecome owner by way of adverse That suit againstthe othertwo colarers was decreed 08 but inadvertently was not dismissedagainstJumna Bai and another defendantwho were not held to be the coesharers The appealwas filed by 7sO JumnaBai which was accepted bytheAppellateCourt on 921984 on the limitedgroundthat the trial Court did not dismiss the suit againsther Ultimatelythe suit againstJumna Bai was dismissed and the appeal to that extent was accepted vide judgment anddecreedated921984 In thesecircumstances it is yet to be decided as to whether an adverse decision on a particular issue aeomrs againsta party in whose favour the 8na1decision is operatesas rejudicataor notas such a party hasno right theRegularsecondappealand theSpecialleave J petitionin the earlier lis Oled by the petitionerswere dismissed at the stagethe had not even beenafforded a rightto flle againstthe adverseflnding on an issue recordedagainst . Anita 2012.08.03 15: 58 True Scanned Copy Of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document 83 0 CR N03483of2002 6 her in theprevioussuit the final decision whereofwas in her favour So all thesequestions are to be decided by the trial Court duringthe trialofthe case It is also not clear from the record as to whether any issue with regardto was struckby the trial Court At this stage it would not be proper to expressany opinionpn merits of the case bythis 1 Court There is no disputewith the proposition of law laid down in the L aforesaidcases However the same are not applicable to this case at this 0 C stageThe order impugned does not suffer from any illegalitymaterial I C5 or perversity and warrant no interference of this Court in its I revisional The order impugned is thus liable to be upheld Z 11 For the reasons recorded above the being e devoidof merit must fail and the same is dismissed However it is made clear that ifan issuewith regard to rejudicatahasnot alreadybeen struck I 08 bythe Court below then the same sha11be struck by it Any observation rnade in this Order shall not be taken as an of mind on merits P 17 Z ofthe case G k0902009 SHAM SUNDER I JUDGE ashish l1 e . Anita 2012.08.03 15: 58 True Scanned Copy Of Original PHHC,Chandigar h JOYTI RANI 2016.03.28 16:23 I attest to the accuracy and integrity of this document