RSA No.2794 of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 2794 of 2005 Date of Decision: August 18, 2009 Sobha Ram and others ...........Appellants Versus Saheed and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.Ashish Gupta, Advocate for Mr.A.K.Tyagi,Advocate for the Appellant. Mr.Lokesh Sinhal,Advocate for the respondents ** Sabina, J. Plaintiffs filed suits titled as `Sobha Ram and others vs. Iliyas and others' and `Saheed and others vs. Ramji Lal and others' for declaration and injunction as a consequential relief thereof. Both the suits were consolidated and disposed of vide one judgment by the Courts below. The suit of the plaintiffs Sobha Ram and others was decreed and suit filed by Saheed and others was dismissed by the Civil Judge (Junior Division) Palwal vide judgment and decree dated 5.9.2000. Aggrieved by the same plaintiffs-Saheed and others filed appeal and the Additional District Judge, Faridabad vide judgment and decree dated 13.5.2005 allowed the appeal titled as Saheed and others versus Ramji lal and others . RSA No.2794 of 2005 2 Hence, the defendants No. 3 to 6 in suit filed by Saheed and others have filed the present appeal. The case of the parties, as noticed by the learned Additional District Judge in paras 3 to 9 of its judgment reads as under:- “ 3. The brief facts of the suit no.130 of 1990 entitled Saheed and others Versus Ramji Lal and others are: Thok Shamlat Thok Hastiyan Nicharla Hasab Rasad Kabza of village Kot, Tehsil Hathin, District Faridabad is the owner and Ramji Lal, defendant No.1, Bhondedar was in possession of the suit land bearing Khewat/Khatoni No. 138/191, rect.No.82, killa Nos. 12(7- 13), 13/1(2-17) total measuring 10 kanals 10 marlas situate within the revenue estate of village Kot, Tehsil Hathin, District Faridabad, vividly described in the jamabandi for the year 1984- 85. Ramji Lal ceased to perform function of Bhondedar, left the village and settled in village Hassanpur, Tehsil Palwal, District Faridabad. Ramji Lal has been wrongly recorded gair mumkin Bhondedar after he ceased to render services, left the village and settled in village Hassanpur for the 12 months prior to filing of the suit. Abdul Rasid, defendant No.2 has been wrongly recorded sub-tenant under Ramjilal defendant No.1 over the land in suit. Ramjilal transferred 1/12th share of the suit property in favour of Sobha Ram, Kashi Ram. Benami and Ishwar Chand defendant no. 3 to 6 vide a judgment and decree passed in civil suit No.1376 on 28.8.1989. The defendants no. 3 to 6 further transferred the suit RSA No.2794 of 2005 3 land to Ismile defendant No. 7 vide a lease deed. Saheed Abdul Razzak and Yusuf, plaintiffs for themselves and as representatives of an on behalf of co-sharers of Thok Shamlat Thok Hastiyan Nicharla of village Kot. Tehsil Hatin, District Faridabad have now filed a suit under order 1 rule 8 Code of Civil Procedure, 1908 seeking declaration that Thok Shamlat Thok Hassaya Nicharla Hasab Rasad Kabza is the owner in possession of the suit land and the judgment and decree passed in civil suit No.1376 dated 28.8.1989 and the lease deed in favour of defendant Ismile are null and void with a consequential relief of permanent injunction restraining the defendants from interfering in the possession of the plaintiffs or alienating the suit land. The plaintiffs also prayed for a decree of possession of the suit land in case the defendants succeed in getting the possession of the land in suit or the possession of the plaintiffs is not established over the suit land. 4. Ramjilal, Abdul Rasid, Sobha Ram, Kanhi Ram, Bainami and Ishar Chand defendants No. 1 to 6 filed a joint written statement and denied ownership and possession of the plaintiffs. It was denied that Ramjilal defendant no.1 has permanently left the village and ceased to render services of Bhondedar. It was averred that defendants no. 1 and 3 to 6 are cultivating the suit land through Abdul Rasid defendant No.2 as Bhondedar. Ramjilal defendant No.1 transferred some portion of the land in favour of his wife's brothers' sons defendants no. 3 to 6 for cultivation and the judgment and decree was validly passed. The defendants no. 3 to 6 were also competent to give their share in RSA No.2794 of 2005 4 the suit land for cultivation on lease. The terms of lease stand expired. All other material averments were specifically denied. It was pleaded that the plaintiffs lacks locus-standi, has no cause of action to maintain false and frivolous suit and prayed that the suit be dismissed with special costs of Rs.2000/- under Section 35-A Code of Civil Procedure,1908. 5. Ismile defendant no.7 after having been sufficiently served in accordance with law was proceeded against exparte vide order dated 30.1.1993. 6. Ramjilal defendant no.1 died during the pendency of the proceedings and his legal representatives were brought on record by the then Sub Judge Ist Class, Palwal vide order dated 24.7.1993. 7. It will be pertinent to pause and mention for the sake of clarity that suit of the plaintiffs was dismissed in default under Order 9 Rule 8 Code of Civil Procedure, 1908 by the then Sub Judge Ist Class, Palwal on 1.12.1992 was restored vide order dated 1.12.1992. Ismile defendant no.7 was proceeded against ex- parte and the legal representatives of Ramjilal were brought on record vide order dated 30.1.1993 and 24.7.1993 respectively. Abdul Rasid, Sobha Ram, Kanhi Ram, Bainami and Ishwar Chand defendants no. 2 to 6 filed another joint written statement on 5.9.1995. The plea taken in the written statement dated 30.7.1991 filed by defendants no 1 to 6 on 29.10.1991 and the written statement filed on behalf of defendants No. 2 to 6 on 5.9.1995 are substantially identical. Defendants no. 2 to 6 denied that Ramjilal RSA No.2794 of 2005 5 had left village Kot and settled in village Hassanpur and have been wrongly recorded as gair morusi Bhondedar on the suit land. It was also denied that Abdul Rasid have been wrongly recorded as tenant under Ramjilal or transfer of 1/12th share in the suit land in favour of defendants no.3 to 6 was illegal or the lease deed was not binding on the rights of the plaintiffs. It was denied that the plaintiffs are owners in possession in the suit land. The defendants also challenged the suit on the grounds of non-joinder and mis-joinder of necessary parties, estoppel and resjudiciata. It was averred that the plaintiffs lack locus-standi have no cause of action to maintain false and frivolous suit based on concealment of true and material facts and prayed that the suit be dismissed with special costs under Section 35-A Code of Civil Procedure, 1908. 8. It will also be pertinent to mention that legal representatives of deceased Ramjilal defendant no.1 brought on record vide order dated 24.7.1993 and defendant no.7 Ismile were proceeded against ex-parte in accordance with law vide order dated 17.4.1995 and 30.1.1993 respectively. 9. It will also be apposite to mention that defendants no. 8 to 18 were allowed to be impleaded as party to the suit by the then Civil Judge (Junior Division), Palwal vide order dated 29.11.1999. The defendants no. 8 to 18 adopted the written statement and the evidence of the contesting defendants is evident from the statement of the counsel for the defendants and order of the Court dated 23.12.1999. RSA No.2794 of 2005 6 On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether plaintiffs are owners in possession of the agricultural land, as detailed in para No. 1 of the plaint? OPP 2. Whether the decree dated 28.8.89 and lease deed in the name of defendant no.7 are wrong, illegal, null and void etc. ?OPP 3. Whether the defendants are illegally interfering into the peaceful possession of the plaintiffs over the suit property and are illegally alienating the same?OPP 4. Whether the plaintiffs is entitled for possession of the suit land in case the defendants succeeded in dispossessing the plaintiffs from the suit land during the pendency of the suit or if the possession of the plaintiffs over the suit land is not established?OPP 5. Whether the suit of the plaintiffs is not maintainable in the present form ?OPD 6. Whether the plaintiff has no locus standi to file the present suit?OPD 7. Whether the plaintiffs has no cause of action to file the present suit?OPD 8. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD 9. Whether the suit is bad for non-joinder of necessary parties and mis-joinder of parties?OPD 10. Whether the suit is barred by the principles of resjudicata?OPD RSA No.2794 of 2005 7 11. Whether the plaintiffs have not come to the court with clean hands?OPD 12. Whether the defendants are entitled to special costs under Sec.35-A CPC, if so how much?OPD 13. Relief '' After hearing the learned counsel for the parties, I am of the opinion that this appeal deserves to be dismissed. Admittedly, Thok Shamlat Hastiyan Nicharla Hasad Rasad Kabza of village Kot Tehsil Hathin District Faridabad is the owner of the suit land measuring 10 kanals 10 marlas. Ramjilal was Bhondedar in possession of the suit land. Thus, Ramjilal was not owner of the suit land and could not alienate the same. Ramjilal, however, left the village Kot and settled in village Hassanpur and ceased to render any services of Bhondedar. Sobha Ram and others came in possession of the suit land and are not rendering any services of Bhondedar. The finding of fact has been arrived at by the learned Additional District Judge that now Ramjilal has failed to render services of Bhondedar and in these circumstances, Thok Shamlat Hastiyan Nicharala of village Kot was entitled to get possession of the suit land. The said finding of fact calls for no interference by this Court. No substantial question of law arises in this case which would warrant interference by this Court. Accordingly, this appeal is dismissed. ( Sabina ) Judge August 18, 2009 arya