RSA No.4005 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4005 of 2007(O&M) Date of decision: 7.4.2010 Satish Kumar and others ......Appellant(s) Versus Shiv Narain and others ......Respondent(s) CORAM:- HON'BLE MR.JUSTICE RAKESH KUMAR GARG * * * Present: Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate for the appellants. Mr. M.L.Sarin, Sr. Advocate with Mr. Kabir Sarin, Advocate for the respondents. Rakesh Kumar Garg, J. This is defendants' second appeal challenging the judgment and decree of the Lower Appellate Court decreeing suit of the plaintiff- respondents for possession declaring them to be owners of the property in dispute and further holding them entitled to recovery of possession of the disputed property and for recovery of mesne profits of Rs.1800/- towards use and occupation for the shop in dispute along with interest at the rate of 8% per annum from the date of filing of the suit till realization. The brief facts, necessary for the disposal of this appeal as alleged are that Richhpal Singh, father of the plaintiff-respondents, got the shop in dispute along with other properties in a family arrangement/ private partition and was the absolute owner thereof. The aforesaid partition took place on 20.2.1956 between Richhpal Singh and his brothers. Richhpal Singh mortgaged the shop along with his other property with Bhagwati Devi and others for a consideration vide mortgage deed dated 13.3.1957 which was got redeemed on 30.12.1963 and the possession was taken over. It was further pleaded that Richhpal Singh died in January 1969 and RSA No.4005 of 2007(O&M) 2 thereafter, the plaintiff-respondents were in possession of the shop in dispute as exclusive owners. They were renting out the shop in dispute to different tenants and ultimately the shop was vacated by the tenant in the month of April, 1977 and thereafter, the plaintiff-respondents permitted Sant Gopal, defendant No.1 (predecessor-in-interest of the appellants) to use the shop in dispute as a licencee in the month of June, 1977 until a suitable tenant was found. Sant Gopal continued to be in possession of the shop, without the consent of the plaintiff-respondents and then, allowed his sons, i.e. defendant No.2 to 4 (now appellants) to occupy the said shop, who were, thus, in unauthorized possession thereof. Plaintiff-respondents further set up the case that they had revoked licence in favour of Sant Gopal vide notice dated 11.1.1980 which was received by defendant No.1, 3 and 4 but was refused by defendant No.2. Thus, the defendant- appellants were unauthorized occupants and were liable to pay Rs.50/- per month as mesne profits w.e.f 13.6.1977. The defendant-appellants filed a joint written statement contesting the suit on the plea of locus standi, cause of action, valuation, limitation and estoppel. The plea of adverse possession was also set up. It was further pleaded that if defendant No.1 and then defendant No.2 were not proved to be owners then in the alternative, defendant No.1 became owner by adverse possession and then defendant No.2 continued to be so. The suit was also alleged to be barred by principle of acquiescence. It was further pleaded that the family arrangement dated 20.2.1956 was never complete or final and the same was not acted upon. Instead, it was pleaded that an oral agreement in or about the year 1952 was entered into by Richhpal Singh and his brothers and the suit property had then fallen to the share of defendant No.1 Sant Gopal. Bhajan Lal another brother of Richhpal Singh filed a suit against his brothers seeking RSA No.4005 of 2007(O&M) 3 decree of his share. Richhpal Singh, predecessor-in-interest of the plaintiffs, filed a written statement (Ex.DX) admitting the claim of Bhajan Lal his brother. Richhpal Singh and Sant Gopal admitted claim of their brother in that suit on the basis of which a decree dated 21.1.1960 was passed. It was disputed that Richhpal Singh was ever owner in possession of the suit property. Partition dated 20.2.1956 as propounded by the plaintiffs was also repudiated citing various reasons. The mortgage propounded by the plaintiffs was explained by pleading that Richhpal Singh owed money to Panna Lal who died and his successors exerted pressure on Richhpal Singh who executed the mortgage deed only as security for repayment of loan and the said mortgage deed was never acted upon. The properties were in the possession of the mortgagee when Richhpal Singh repaid the mortgage money and that the mortgage was a paper transaction. In a suit titled as Subhash Chand v. Shiv Narain and others being Suit No.301 of 1979 between the same parties, no mention of the mortgage deed was made. Possession of Richhpal Singh or his successors-in-interest over the shop in dispute was disputed and denied. It was alleged that House Tax receipts with the plaintiffs were fabricated. The partition as propounded by the plaintiffs having been admitted by the defendants in another suit titled Subhash Chand v. Shiv Narain etc., was disputed, with the further plea that defendant No.1 Sant Gopal was not even a party in the said suit. Renting out of the shop in dispute to any body was seriously disputed. Other averments of the defendants were completely denied. Explaining their case, the defendants elaborated that the suit property remained rented out to M/s Devindra Brothers from the year 1960 to 1977, firstly by defendant No.1 in his own right and thereafter by defendant N.2 who became owner by virtue of a Court decree but defendant No.1 continued RSA No.4005 of 2007(O&M) 4 to watch the safeguard the interest of defendant No.2. When M/s Devindra Brothers vacated the shop, a writing was given by them regarding delivery of possession. The fact that Sant Gopal had been given possession of the shop in dispute as licencee in June, 1977 was denied. It was further set up that defendants No.3 and 4 had no concern with the suit property and were wrongly made a party. By way of amendment in the written statement, it was further set up that the shop in dispute initially fell to the share of Richhpal Singh in the year 1952 but subsequently the said arrangement was found prejudicial to the interest of defendant No.1, who showed displeasure to Richhpal Singh who in order to equalize the property made an oral agreement with Sant Gopal and transferred the shop in dispute along with his share in joint staircase in the year 1958 and after about six months from such allotment, transferred a vacant plot to defendant No.1. In the replication, earlier assertion made in the plaint were reiterated and those made in the written statement were controverted. On the pleadings of the parties, the following issues were framed: “1. Whether the plaintiffs are owners of the disputed shop? 2. If preceding issue is proved, whether the defendants are in illegal and unauthorized possession of the disputed shop? OPP (onus objected to) 3. Whether the plaintiffs are entitled to possession of the defendants disputed shop and recovery of Rs.1800/- as mesne profits, from the defendants as alleged? OPP 4. Whether the plaintiffs have no locus standi to file this suit? OPD RSA No.4005 of 2007(O&M) 5 5. Whether the plaintiffs have no cause of action? OPD 6. Whether the suit has not been properly valued for the purposes of Court fee and jurisdiction? OPD 7. Whether the suit is barred by limitation? OPD 8. Whether the plaintiffs are estopped from filing this suit? OPD 9. Whether previously defendant No.1 and now defendant No.2 is owner in possession of the disputed shop by adverse possession? OPD 10. Whether defendants No.1 and 2 has become owner of the disputed shop by adverse possession? OPD 11. Whether the family arrangement through writing dated 20.2.1956 is inoperative and was not acted upon? OPD 12. Whether the defendants are entitled to special costs? OPD 13 Relief.” On appraisal of evidence and submissions of the parties, the trial Court came to the conclusion that the shop in dispute fell to the share of plaintiffs' predecessor Richhpal Singh and that the family arrangement dated 20.2.1956 was binding upon the parties. However, the trial Court concluded that the defendants had became owners of the shop by adverse possession. Thus, issues No.1 and 11 were disposed of as above, while issues No.2 to 5 and 8 to 10 were decided in favour of the defendants. Under issue No.6, it was held that the suit was properly valued for the purpose of court fee and jurisdiction. Issue No.7 was decided in favour of RSA No.4005 of 2007(O&M) 6 the defendants holding that the suit was time barred. Under issue No.12, the defendants were held entitled to special costs. In sequel to the aforesaid findings, the suit was dismissed. Feeling aggrieved by the impugned judgment and decree of the trial Court, the plaintiffs preferred an appeal assailing the findings on issues decided against them while defendants No.1 and 2 filed cross appeal to challenge the findings of the trial Court whereby the plaintiffs were held as owners on the basis of family settlement. The Lower Appellate Court vide judgment and decree dated 27.9.1990 upheld the judgment and decree of the trial Court. The plaintiffs filed RSA No.44 of 1991 against the aforesaid judgment and decree dated 27.9.1990 passed by the Lower Appellate Court. During the pendency of the aforesaid appeal, an application for additional evidence filed by the plaintiffs was allowed and certified copy of the judgment and decree dated 18.12.1985 passed in a previous litigation between the parties was brought on record. This Court vide its judgment and decree remanded the case to the Lower Appellate Court for a fresh decision after taking into account the judgment and decree dated 18.12.1985. While accepting the appeal, the Lower Appellate Court affirmed the findings of the trial Court declaring that Richhpal Singh became owner of disputed shop by way of family partition dated 20.2.1956. While affirming the aforesaid findings, the Lower Appellate Court found that the defendant-appellants had based their title in the previous suit as well as in the present suit on the alleged rearrangement of 1958 and written statement Ex.DX and since their claim on the basis of such title was rejected in the previous suit qua one property namely the vacant plot, their claim based on the same title even in respect of the shop in dispute deserves rejection in the face of judgment and decree Ex.A1, Ex.A2 and RSA No.4005 of 2007(O&M) 7 order EX.A3 passed by this Court. In other words, fresh adjudication of the plea regarding rearrangement of 1958 based on written statement Ex.DX was held to be barred by principle of res judicata. The plea of adverse possession taken in the alternative by the appellants was held to be lacking the necessary ingredients of adverse possession. It was further held that possession of the appellants over the shop in dispute was permissive and not hostile. The findings on the question of limitation were also reversed. As a result of the above discussion, the appeal filed by the plaintiff-respondents was allowed with costs, while the cross-appeal filed by defendants No.1 and 2 was dismissed with costs and the suit of the plaintiffs was decreed declaring them to be owners of the disputed shop. They were also held entitled to recovery of possession and mesne profits. Not satisfied with the aforesaid impugned judgment and decree of the Lower Appellate Court, the defendants have approached this Court through the instant appeal challenging the judgment and decree passed by the Lower Appellate Court. Learned counsel for the appellants has vehemently argued that the Lower Appellate Court has grossly erred at law while rejecting the case of the appellants on the ground of res judicata. It is submitted that as per the mandate of Section 11 of the Code of Civil Procedure, the plea of res judicata is only available if the issues as well as the parties in both the suits are the same whereas in the present case the parties to both the suits i.e the earlier suit for permanent injunction as well as instant suit, are not the same and in the earlier suit was for permanent injunction only and the appellant-Subhash Chand was a party. Moreover, the previous suit was a simpliciter suit for permanent injunction against the present respondents which was dismissed vide documents Ex.A1 to A-3. Therefore, by no stretch of imagination, the principle of res judicata can be extended in the RSA No.4005 of 2007(O&M) 8 present case. It was further argued that an incidental finding on the issue of title in a suit for injunction cannot operate as res judicata in the later suit where the title and ownership was directly and substantially in issue. Learned counsel for the appellants further argued that Richhpal Singh, predecessor- in-interest of the present respondents in earlier proceedings admitted that the suit property belong to defendant No.1- Sant Gopal i.e. predecessor-in interest of the appellants. In view of the aforesaid admission made by Richhpal Singh in the written statement Ex.DX, the Lower Appellate Court was not justified in rejecting the claim of the appellants. Learned counsel for the appellants further argued that the Lower Appellate Court has failed to appreciate the evidence on record. Learned counsel for the appellants further argued that the findings of the Lower Appellate Court with regard to mesne profits cannot be sustained being contrary to mandate of Order 20 Rule 12 CPC as no enquiry was made by the Courts below before determining the mesne profits. Learned counsel for the appellants relied upon Gram Panchayat of Village Naulakha v. Ujagar Singh and others AIR 2000 SC 3272 and Satyabhamabai (deceased by LR) and etc. v. Pandurang Marotrao Pawar AIR 1990 Bombay 134 to canvass that in an earlier suit for injunction an incidental finding on title will not be binding in a latter suit or proceeding where title is directly in question. On the basis of the aforesaid argument, learned counsel for the appellants has submitted that the following substantial questions of law arise in this appeal: “(i) Whether in view of the admitted fact that defendants Nos.1, 2 and 4 were not party to the injunction suit (Ex.A-1), which was regarding some other property, can the suit of the plaintiffd be decreed on the RSA No.4005 of 2007(O&M) 9 basis of res judicata? (ii) Whether the controversy with regard to res judicata could be decided by the learned Lower Appellate Court without framing an issue and without giving an opportunity to the defendant-appellants to rebut the same? (iii) Whether an incidental finding on the issue of title in a suit for injunction can operate as res judicata in a later suit where the title and ownership is directly and substantially in issue? (iv) Whether the findings of learned Lower Appellate Court with regard to mesne profits can be sustained in the eyes of law being contrary to mandate of Order 20 Rule 12 and non-speaking? (v) Whether in spite of the admission (Ex.DX) by the predecessor-in-interest (Sh. Richhpal Singh) of the plaintiffs, the learned Lower appellate Court was justified in rejecting the claim of the appellants? (iv) Whether the findings recorded by the learned Lower Appellate Court are perverse and based upon conjectures and surmises? On the other hand, learned counsel for the respondents has supported the judgment and decree of the Lower Appellate Court. Learned counsel for the respondents argued that the plea of adverse possession set up by the appellants was rightly held to be lacking necessary ingredients of adverse possession as the appellants had not indicated in their pleadings as to when their alleged adverse possession was started as they did not even allege either in pleadings or during RSA No.4005 of 2007(O&M) 10 evidence that their possession was hostile. Rather, it was their plea that Richhpal Singh had himself transferred the disputed shop to defendant- Sant Gopal in a family arrangement in the year 1958 and thus, the Lower Appellate Court rightly negatived the plea of appellants in this regard. Learned counsel for the respondents further argued that the Lower Appellate Court rightly held that fresh adjudication of plea regarding rearrangement of 1958 in the face of documents Exs.A-1 to A-3 was barred by principle of res judicata as the appellants had based their title in their previous suit as also in the present suit on the alleged rearrangement of 1958 and written statement Ex.DX. Once their claim of such title was rejected in the previous suit, their claim based on the same title deserves to be rejected in the face of documents Exs.A1 to A3. Learned counsel further argued that the plea of family rearrangement in the year 1958 purported to be admitted in the written statement Ex.DX by Richhpal Singh was rejected by the Lower Appellate Court in the earlier suit vide Ex.A1 and therefore, the claim of the plaintiff-respondents cannot be rejected on the basis of the aforesaid alleged admission on the part of Richhpal Singh. On the basis of the aforesaid arguments, learned counsel for the respondents has prayed that the instant appeal deserves to be dismissed having no merit. Learned counsel for the respondents relied upon a judgment of the Hon'ble Supreme Court in Srimati Raj Lakshmi Dasi and others v. Banamali Sen and others AIR 1953 SC 33. I have heard learned counsel for the parties and perused the record and the impugned judgment and decrees of the Courts below. The plaintiffs have set up their case that their predecessor-in- interest Richhpal Singh had received the disputed shop in a family arrangement which was subsequently reduced into writing on 20.2.1956. Sant Gopal-defendant while appearing in the witness box as DW-1 RSA No.4005 of 2007(O&M) 11 admitted the plaintiffs' version and therefore, nothing more was required to be proved on behalf of the plaintiffs to establish their ownership qua the disputed shop. However, the appellants after, having initially admitting that the disputed shop fell to the share of Richhpal Singh in 1952 in a family arrangement, pleaded that the said arrangement was found prejudicial to the interest of Sant Gopal and by an oral agreement with Sant Gopal in the year 1958, Richhpal Singh transferred the disputed shop and one vacant plot to said Sant Gopal. It was further stated that Richhpal Singh had filed a written statement Ex.DX admitting said rearrangement in a suit filed by his brother Bhajan Lal. The said rearrangement has been disputed by the plaintiff-respondents. It is not in dispute that earlier in a civil suit titled as Subhash Chand v. Shiv Narain and others, the appellants claimed a decree for permanent injunction in respect of the vacant plot on the basis of the aforesaid rearrangement of 1958 was not accepted by the Civil Court vide Exs.A1 to A3. Thus, the whole controversy between the parties hinges upon the question as to whether in the face of judgments/decrees Exs.A1 to A3 in the earlier suit of permanent injunction between the parties wherein the plea of family rearrangement in the year 1958 raised on the basis of the alleged admission of plaintiff-Richhpal Singh in written statement Ex. DX was rejected, amounts to res judicata between the parties or not. There is no dispute with the proposition of law as settled in the judgments relied by the learned counsel for the appellants and it is well settled that the principle of res judicata is applicable only if the matter in issue was directly and substantially involved in the previous suit and that the said principle cannot be made applicable to a matter which was merely collateral or incidentally involved in the previous suit. However, the appellants have based their title in the previous suit as also in the present RSA No.4005 of 2007(O&M) 12 suit on the alleged rearrangement of the year 1958 and the admission of Richhpal Singh on the basis of written statement Ex.DX. Once their claim on the basis of such title was rejected in the previous suit qua one property, their claim based on the same title in respect of the shop in dispute deserves rejection straightway in the face of judgment and decrees Exs.A1 to A3. A perusal of the judgment dated 18.12.1985 (Ex.A1) passed by Sh. D.D. Yadav, the Additional District Judge (II) Faridabad in Civil Appeal No.226 of 5.12.1984 titled as Subash Chand v. Shiv Narain and others shows that the present appellants had set up the plea of family rearrangement between the parties on the basis of the admission contained in the written statement Ex.DX. While concluding, the Court held that it was difficult to conclude that the written statement Ex.DX bore the signatures of Richhpal Singh as he was no longer available to appear in the witness box and the said alleged admission was a weak evidence and the title cannot be held to have been passed on such admission and further after discussing the evidence on record in that case, the Court held that the appellants failed to establish their ownership. It may not be out of place to mention here that the argument of the learned counsel for the appellants with regard to violation of the provisions of Order 20 Rule 12 CPC is also without any basis as the aforesaid question was neither pleaded nor argued before the Courts below by the appellants and thus, the same cannot be raised for the first time before this Court in the regular second appeal. No other point was urged. Thus, no substantial question of law as argued arises in this appeal. Dismissed. RSA No.4005 of 2007(O&M) 13 April 7, 2010 (RAKESH KUMAR GARG) ps JUDGE RSA No.4005 of 2007(O&M) 14