R.S.A. No. 1500 of 2006 -1- In the High Court of Punjab and Haryana at Chandigarh R.S.A. No. 1500 of 2006 Date of Decision:October 06, 2009 Rajesh Kumar and others ---Appellants versus State of Haryana and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr.Kul Bhushan Sharma,Advocate, for the appellants Ms. Maloo Chahal, Deputy Advocate General, Haryana. *** SABINA, J. Plaintiffs had filed a suit for possession. Civil Judge ( Junior Division), Nuh vide judgment and decree dated 20.8.2002 dismissed the suit of the plaintiffs. Aggrieved by the same, legal heirs of plaintiff No. 7 preferred an appeal and the same was dismissed by Additional District Judge, Gurgaon vide judgment and decree dated 22.9.2005. Hence, the present appeal. The facts of the case as noticed by the learned trial court, in paras 2 to 9 of its judgment read as under:- R.S.A. No. 1500 of 2006 -2- “In brief, the plaintiffs case is that one Chhajan son of Kishan Lal was owner of the suit land and he was an accused in a murder case. He absconded the proceeding and he was declared absconder. The proceeding u/s 87 and 88 of Cr.P.C. of 1898 were taken against him and the suit land was attached and thereafter it was mutated in favour of defts. no. 1 and 2 vide mutation No. 812 dt. 26.8.1929. 3. The proceeding of consolidation of holding took place in the village and in lieu the suit land was allotted. The Chhajjan at the time of declaration of absconder was of age about 27-28 years and his whereabouts are not known to the plaintiffs and to other relatives and it would be presumed that Sh. Chhajjan has died. 4. The suit property was ancestral in the hands of Shri Chhajjan. Shri Chhajjan belongs to Hindu Rajpoot community. In the matter of alienation and succession they are governed by customs. The suit property being ancestral cannot be alienated without consideration and legal necessity. The mutation in favour of defts. no. 1 and 2 is against the customs and law and the same is not binding upon the rights of the plaintiffs. The plaintiffs are the nearest agnatic heir of Chhajjan. The deft. no. 3 is a son of Harphool and their brother and he could not join the proceeding as he is not available in the village. 5. When they approach the officials of defendants no. 1 and 2 to deliver the possession in their favour. They refused to do so and now they came to know that defts. no. 1 R.S.A. No. 1500 of 2006 -3- and 2 are putting the suit land on auction on 26.7.1989. Hence, this suit. 6. The value of the suit land for the purpose of jurisdiction is Rs. 570/- and court fee has been affixed accordingly. 7. Notice of the suit was issued to the defendants, whereupon defts. no. 1 and 2 appeared and contested the suit. Whereas, suit against deft.no. 3 was dismissed on 13.12.1996. During the progress of the case defts. no. 4 and 5 were arrayed as defendants, but they were also proceeded ex parte. However, at the final stage counsel for deft. no. 4 also appeared and participated in the arguments. 8. The defts. no. 1 and 2 in their written statement raised preliminary objections to the effect that the suit is barred by principle of res judicata; the plaintiffs have concealed the material facts as the suit filed by their father was dismissed by the court of ld. Senior Sub Judge, Gurgaon on 15.11.1971 and the present suit is barred under order 9 rule 9 of CPC; the plaintiffs have no locus standi to file the present suit. 9. On merits, it is admitted that the suit land mutated in favour of defts. no. 1 vide mutation no. 812 dated 26.8.1929. the plaintiffs have filed a suit now after more than 60 years. It has been submitted that the father of the plaintiffs filed a suit which has already been dismissed on 15.11.1971 under order 9 rule 8 of CPC. The averment in para no. 2, 3 and 4 has been admitted. However, it is denied that the plaintiffs and deft. no. R.S.A. No. 1500 of 2006 -4- 3 are legal heirs of deceased Shri Chhajjan. It has also been averred that they should have raised objections at the time of transfer of land in favour of defts. no. 1 and 2 or when the land was actually leased out. Public auction of the suit land has been admitted, but is could not held due to stay granted by the court. With these submissions it has been prayed that the suit may be dismissed with costs.” On the pleadings of the parties, trial court framed the following issues:- “(1)Whether the plaintiffs are the owners of the suit property and entitle to the possession thereof? OPP (2)Whether the present suit is barred by the principle of res- judicata? OPD (3)Whether the plaintiffs have got no locus-standi for filing the present suit? OPD (4)Whether the suit of the plaintiffs is not maintainable in the present form? OPD (5)Relief. After hearing learned counsel for the parties, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed. Plaintiff had filed a suit for possession with regard to the land in dispute. Both the courts below after appreciating the evidence on record have held that the suit of the plaintiffs was not maintainable as the same was barred by Order 9 Rule 9 R.S.A. No. 1500 of 2006 -5- Code of Civil Procedure. Undisputedly, Harphool Singh, father of the plaintiffs and defendant No. 3 had filed a civil suit bearing No. 48 of 1970 claiming similar relief and the said suit was dismissed by the learned Senior Sub Judge vide judgment and decree dated 15.11.1971 as none had appeared on behalf of the plaintiffs although the case was fixed for evidence of the plaintiffs. Thus, the said suit was dismissed in terms of Order 9 Rule 8 of the CPC. In these circumstances, both the courts below had rightly held that the suit filed by the present plaintiffs was barred by the provisions of Order 9 Rule 9 CPC. No substantial question of law arises in this appeal for consideration. Accordingly, this appeal is dismissed. (SABINA) JUDGE October 06, 2009 paramjit