RSA No.4379 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.4379 of 2008 Date of Decision:17.03.2010 Pal Singh .... appellant Versus Gurnam Singh & Ors. .....respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR GARG 1.Whether Reporters of local papers may be allowed to see the judgement? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Mr.Amit Jain,Advocate for the appellants **** RAKESH KUMAR GARG J.(ORAL): This is plaintiff's second appeal challenging the judgment and decrees of the courts below, whereby his suit for permanent injunction restraining the defendants/respondents from interfering into his peaceful possession over the suit land, illegally except in due course of law was dismissed. Appellant claims to be in possession of the suit land on the basis of a Will dated 25.03.1994 from Hazara Singh who died on 29.11.1996. It is further averred that part of land is owned by Jumla Malikan and another part by Gram Panchayat and plaintiff was in possession of the same and was paying the lagaan and share of the crop regularly. The suit was contested by the respondents submitting that there was a previous litigation between the parties titled as 'Pal Singh versus Gurnam Singh & Others. The factum of the aforesaid litigation was RSA No.4379 of 2008 2 not disclosed by the appellant and therefore the suit was liable to be dismissed for not complying the requirement of Order 7 Rule 1(j)CPC. It was further alleged that Hazara Singh, father of the plaintiff-appellant had agreed to sell the suit land to the defendant-respondent vide agreement to sell dated 30.05.1994 on receipt of entire sale consideration and had handed over the possession to them and the revenue record was also corrected in their favour and thus the suit deserves to be dismissed. Both the courts below dismissed the suit. Still not satisfied, the appellant has approached this Court by way of instant appeal challenging the judgment and decrees of the courts below. Learned counsel for the appellant has vehemently argued that the courts below have erred in law while ignoring that possession of the appellant over the suit land was established on the basis of the registered Will dated 25.03.1994 executed by Hazara Singh and therefore the findings of the Courts below were liable to be set aside. It was further argued that the cause of action in the previous litigation and the present suit was different and thus provisions of Order 7 Rule 1(j)CPC were not attracted and thus the following substantial questions of law arise in this appeal for consideration: 1.Whether in the facts and circumstances of the instant case the approach of the courts below in ignoring the material evidence led by the appellant showing his possession while dismissing the suit, can be sustained in law? 2.Whether in the facts and circumstances of the instant case the approach of the courts below in holding that the present suit violated Order 7 Rule 1(j) CPC can be sustained in law particularly when the causes of action in the two suits was materially different? RSA No.4379 of 2008 3 I have heard learned counsel for the appellant and perused the impugned judgment and decrees. It is relevant to refer to the observations of the Lower Appellate Court which read as follows: “However, this argument of the counsel for the plaintiff is without any force firstly because the khasra girdawaries have been changed in the name of the defendants only after visiting the spot by the revenue authorities concerned. The possession has been delivered to the defendants by Hazara Singh father of the plaintiff since he has agreed to sell the suit land to them vide agreement to sell dated 30.05.1994 after receipt of the full consideration of Rs. 1 lac. The Will dated 25.03.1994 alleged to be executed by Hazara Singh in favour of his son is meaningless to prove the possession of plaintiff Pal Singh on the suit land firstly because this Will proves ownership only and secondly otherwise also this Will has not been proved on record as required u/s 68 of the Indian Evidence Act as none of the marginal witnesses of this Will has been examined by the plaintiff. So this means that no Will was executed in favour of Pal Singh. So far as Order 7 Rule 1(j)CPC is concerned, admittedly there has been a previous suit between the parties titled as 'Pal Singh versus Gurnam Singh and others' and the same has been dismissed by the Court of Sh.J.S.Bhinder, Civil Judge(Jr.Division), Ludhiana on 08.06.1998 and no appeal has been preferred to the same and thus the same has become final. So far as no application has been moved by the appellant/plaintiff for amendment of the plaint to the effect that the averments RSA No.4379 of 2008 4 regarding the previous litigation be made in the plaint after amendment. So, in the absence of any such application, the arguments of counsel for the appellant/plaintiff is without any merit. The above discussion shows that the defendants are in possession over the suit land and plaintiff has failed to prove his possession over the same. Since there have been previous litigation between the parties and same has not been disclosed in the present plaint and that judgment has become final since the same has not been challenged. So the plaintiff is not entitled for injunction prayed for and the plaint is liable to be rejected u/o 7 Rule 1(j)CPC and the suit is barred by the principle of res judicata.” Both the Courts below have recorded a finding of fact that the appellant has failed to disclose the earlier litigation and therefore the plaint was liable to be rejected under Order 7 Rule 1(j)CPC. The factum of earlier litigation is not disputed. Learned counsel appearing on behalf of the appellant was in fact unable to refer to any material on record on the basis of which the aforesaid findings of the Lower Appellate Court could be controverted. I find no merit in this appeal. No substantial question of law arises. Dismissed. (RAKESH KUMAR GARG) JUDGE 17.03.2010 neenu