Bal Krishan Sharma vs Bal Krishan

Virender Singh, J

Appellant-Bal Krishan Sharma has preferred the present Regular Second Appeal, against the judgment and decree dated 30.01.1995, passed by the Court of learned District Judge, Mandi, Kullu and Lahaul-Spiti Districts, at Mandi, Himachal Pradesh (hereinafter referred to as the ‘learned First Appellate Court’), in Civil Appeal No.13 of 1994, titled as ‘Bal Krishan Sharma Versus Bal Krishan’ and Civil Appeal No.20 of 1994, titled as ‘Bal Krishan Versus Bal Krishan Sharma’.

Vide judgment and decree dated 30.01.1995, the learned First Appellate Court had dismissed Civil Appeal No.13 of 1994, preferred by the appellant, whereas, Civil Appeal No.20 of 1994, preferred by the respondent, was allowed, by granting the following relief:-

“17. In view of the findings given above Civil Appeal No.13/94 titled Bal Krishan Sharma v. Bal Krishan is dismissed whereas Civil Appeal No.20/94 titled Bal Krishan v. Bal Krishan Sharma is allowed and the impugned judgment and decree so far it grants permanent prohibitory injunction restraining the defendant from raising any construction over five metres of land shown as Sarak in Khasra No.2969/1764 as per the copy of jamabandi Ex.DA/1 is set aside, but maintained so far the relief of mandatory injunction has been dismissed. Consequently the suit of the plaintiff is dismissed as a whole. In the facts and circumstances of the case there is no order as to costs.”

The aforesaid appeals were preferred by the parties to the lis, against the judgment and decree dated 31.12.1993, passed by the learned Senior Sub-Judge, Mandi, Himachal Pradesh (hereinafter referred to as the ‘learned trial Court’) in Civil Suit No.37 of 1991, titled as ‘Bal Krishna Sharma Versus Bal Krishan’.

Vide judgment and decree dated 31.12.1993, the learned trial Court had decreed the suit for permanent prohibitory injunction, preferred by the appellant, by granting the following relief:-

“12. In view of my discussion and findings on issue Nos 1 to 10 above, suit of the plaintiff succeeds partly and decree is passed in favour of the plaintiff and against the defendant for permanent prohibitory injunction restraining the defendant from raising any construction over five metres of land shown as sarak in Khasra No.2969/1764 as per the copy of Jamabandi Ex.DA/1 coupled with the copy of Khasra girdwari Ex.DB, and rest of the suit of the plaintiff for mandatory injunction is dismissed in view of my findings on the issues discussed above. Parties are left to bear their own costs in view of the facts and circumstances of the case. Decree sheet be drawn up accordingly.”

For the sake of convenience, the parties to the present lis are, hereinafter referred to, in the same manner, as were, referred to, by the learned trial Court.

The plaintiff has filed two appeals, before this Court, against the judgment and decree, passed by the learned First Appellate Court. Both the appeals were registered as RSA No.259 of 1995 and RSA No.278 of 1995 and the same were dismissed in default vide order dated 28.09.2007. However, the present appeal i.e. RSA No.259 of 1995 was ordered to be restored to its original number vide order dated 27.12.2007, passed by this Court, whereas, RSA No.278 of 1995, as per record, was not restored to its original number, till date.

By way of the present appeal, the findings of the learned Courts below have been assailed on the ground that the learned First Appellate Court has fallen into grave error while coming to the conclusion that the right of path over Sarak (road) in question has been acquired by the appellant as easement of necessity.

The findings of the learned First Appellate Court have further been assailed on the ground that the learned First Appellate Court has wrongly concluded that the learned trial Court has not decided whether the right of path has been acquired by the appellant by grant of transfer or by way of easement and the positive evidence, which has been led by the plaintiff, in this regard, was not considered.

The findings have further been assailed on the ground that the learned First Appellate Court has wrongly concluded that the plaintiff has 4-5 ft. wide road in front of his house, from where, he can go to the main road. The learned First Appellate Court has wrongly reversed the finding of the learned trial Court on issue No.1, as, there was no material on record to arrive at such conclusion.

On the basis of the grounds of appeal, Dr. Lalit K. Sharma, Advocate, appearing for the appellant, has prayed that the appeal may be allowed, as prayed for.

Per contra, the prayer, so made, by learned counsel for the appellant, has been vehemently opposed by Mr. Rajesh Mandhotra, Advocate, appearing for the respondent, highlighting the fact that with the dismissal of RSA No.278 of 1995, on 28.09.2007, the present appeal is also liable to be dismissed, as, the same is hit by the principle of res judicata.

11.1. In order to buttress his contention, learned counsel for the respondent has relied upon the decision of the Division Bench of this Court in ‘Ramesh Chand Versus Om Raj and Others’, reported in 2022(2) Shim.L.C 1145. Hence, a prayer has been made to dismiss the present appeal.

In order to understand the controversy, involved in the present case, it has to be seen as to what relief has been sought by the plaintiff in the civil suit, filed before the learned trial Court.

12.1. The plaintiff has filed the suit for permanent prohibitory and mandatory injunction, against the defendant, on the ground that he is owner in possession of the single-storeyed pucca house, constructed over Khasra No.226/290, Khasra No.2995/1751, measuring 106-75 sq. mts., situated in Mauja Sain, Mandi Town (hereinafter referred to as the ‘suit land’).

12.2. According to the plaintiff, there is ‘gair mumkin sarak’ over Khasra No.2969/1764 on the western side of the plaintiff’s house and the said passage is stated to have been purchased by the defendant, from the original owner of the land of the parties to the lis.

12.3. It is the case of the plaintiff that the said gair mumkin sarak, situated over Khasra No.2969/1764 is meant for use as path for the original owner of the adjoining land, as well as, by the plaintiffs. However, the defendant has started the construction over Khasra No.2969/1764 in order to change the nature of gair mumkin sarak.

12.4. Asserting the right of easement by necessity, it is the further case of the plaintiff that he, being in service at Chamba, was not present in the town, as such, the defendant has raised the construction over the portion of the ground floor roof and made efforts to raise further construction to deprive the plaintiff from using the said path.

On the basis of above facts, plaintiff has prayed that the suit may be decreed, as prayed for.

When put to notice, the suit has been contested/resisted by the defendant by filing the written statement, in which, he has taken the preliminary objections to the effect that the suit is not maintainable; that no enforceable cause of action has arisen to the plaintiff; that the suit is not properly valued for the purpose of Court fee and jurisdiction; that the suit is bad for non-supply of better particulars; that the plaintiff has no locus standi to file the present suit; that the suit is bad for mis-joinder and non-joinder of the cause of action and that the suit has been filed with mala fide intention and the plaintiff has not come to the Court with clean hands.

14.1. On merits, the factual position, as asserted in the plaint, has been denied and the suit has been contested by pleading that the plaintiff is not the owner of the house, because, he has encroached upon the land of the defendant in his absence.

14.2. According to the defendant, by way of encroachment, the plaintiff has constructed the retaining wall and by raising the construction, the plaintiff has also blocked the flow of the nalla (water channel). However, the defendant has admitted that he has purchased the suit land and has constructed the house on the sarak and other land in the year 1987-88. The said passage is meant to be used by him only, as the said passage is upto the land, purchased by him.

On the basis of above facts, defendant has prayed that the suit may be dismissed.

Plaintiff has filed the replication, to the written statement, filed by the defendant, denying the preliminary objections, as well as, the contents of the written statement, by virtue of which, the suit has been contested, by re-asserting the contents of the plaint.

From the pleadings of the parties, following issues were framed, by the learned trial Court, vide order dated 09.09.1991:-

“1. Whether the plaintiff has right of path through the ‘sarak’ in dispute as alleged? OPP

Whether the defendant has raised the construction of brickwall and projection etc. during the absence of the plaintiff as alleged, if so its effect? OPP

Whether the plaintiff is entitled to the permanent prohibitory and mandatory injunction? OPP

Whether the suit is not maintainable in the present form? OPD

Whether the plaintiff has no enforceable cause of action? OPD

Whether the suit is not properly valued for the purposes of court fee and jurisdiction if so what is the correct valuation? OPD

Whether the suit is bad for non-supply of better particulars? OPD

Whether the plaintiff has no locus standi to file the present suit? OPD

Whether the suit is bad for misjoinder and non-joinder of the cause of action? OPD

Whether the defendant is entitled to special costs? OPD

Relief.”

After framing of the issues, parties to the lis were directed to adduce evidence.

After closure of the evidence and upon hearing learned counsel for the parties, the learned trial Court had decreed the suit for permanent prohibitory injunction vide judgment and decree dated 31.12.1993, however, the relief of mandatory injunction had not been granted to the plaintiff.

Feeling aggrieved from the said judgment and decree, passed by the learned trial Court, the defendant had preferred Civil Appeal No.20 of 1994 by assailing the findings of the learned trial Court, by virtue of which, the suit of the plaintiff has been decreed, as referred to above.

20.1. On the other hand, plaintiff-Bal Krishan Sharma had also preferred Civil Appeal No.13 of 1994, assailing the judgment and decree, passed by the learned trial Court, by virtue of which, the relief of mandatory injunction has been denied to him.

20.2. The learned First Appellate Court had dismissed Civil Appeal No.13 of 1994, preferred by the plaintiff and had allowed Civil Appeal No.20 of 1994, preferred by the defendant and the judgment and decree, by virtue of which, the relief of permanent prohibitory injunction, granted to the plaintiff, had been set aside and suit of the plaintiff was ordered to be dismissed, as a whole.

The present appeal has been admitted, by this Court, on 25.08.1995, on the following substantial questions of law:-

“1. Whether easementary rights acquired by way of prescription can be denied to a person on the ground that alternate way is available to that person?

Whether the presumption of truth is attached to revenue record and the registered sale deed in which Khasra No.2969/1764 has been recorded as Gair Mumkin Sarak?

Whether the First Appellate Court can change the findings of lower Trial Court on point which was not at issue between the parties?”

Thereafter, the following additional substantial question of law has been framed, by this Court, vide order dated 18.09.2024:-

“4. Whether the dismissal of RSA No.278 of 1995, in default, preferred against the impugned judgment and decree, passed by the learned First Appellate Court, would amount to res judicata, in view of the decision of this Court in ‘Ramesh Chand versus Om Raj and others, reported in 2022(2) SLC 1145’?”

Since, the additional substantial question of law, which has been framed, vide order dated 18.09.2024, goes to the root of the case, as such, the same is required to be decided first.

The present appeal has been filed, by the plaintiff (appellant herein), against the judgment and decree, passed by the learned First Appellate Court in Civil Appeal No.20 of 1994, whereby, the learned First Appellate Court has allowed the appeal by setting aside the judgment and decree, passed by the learned trial Court, by virtue of which, the relief of permanent prohibitory injunction was granted in favour of the plaintiff, whereas, RSA No.278 of 1995 had been filed against the judgment and decree, passed by the learned First Appellate Court in Civil Appeal No.13 of 1994, whereby, the learned First Appellate Court has dismissed the appeal, preferred by the plaintiff against the judgment and decree, passed by the learned trial Court, by virtue of which, the relief of mandatory injunction has not been granted.

It would not be out of place to record herein that with the dismissal of RSA No.278 of 1995, the findings of the learned trial Court, on issue No.3, as affirmed by the learned First Appellate Court, have attained finality.

If, the above factual position is seen, in the light of the decision of the Division Bench of this Court in Ramesh Chand’s case (supra), then, there is no legal hesitation for this Court to hold that the present appeal is also hit by the principle of res judicata. Relevant paragraph 42 of the said judgment is reproduced, as under:-

“42. The principles deducible from the afore-discussed law can be summarized as follows:-

(i) When two suits are consolidated and tried together with common issues framed and common evidence led by the parties, resulting in a common judgment and decree, the same can be subjected to challenge by way of a single appeal at the instance of the aggrieved party;

(ii) Where a single appeal is filed questioning the judgment and decree passed in two suits, which were consolidated and decided by a common judgment, decision of such single appeal, by a common judgment, reversing or modifying the claim in one suit out of the two, can be challenged by the aggrieved party also, in a single appeal.

(iii) When two suits though not consolidated but are decided by a common judgment, resulting into preparation of two separate decrees, the aggrieved party would be required to challenge both of them by filing separate appeals;

(iv) When both the suit and the counter claim are decreed by a common judgment, regardless of whether separate decree has been prepared in the counter claim, both would be required to be challenged by separate appeals;

(v) In a case where two separate appeals are required to be filed against judgment of the suit and the counter claim and if appeal is filed only against one and not against the other, non filing of appeal against such judgment and decree would attach finality thereto and would attract not only the principle of res judicata but also waiver and estoppel and the judgment and decree not appealed against would be taken to have been acquiesced to by the party not filing appeal;

(vi) When however, two appeals are filed against a common judgment passed by the trial Court, both by the plaintiff and the defendant, and are disposed of by the first appellate Court by modifying/reversing/affirming judgment of the trial Court, the aggrieved party, would be required to challenge both by two separate appeals, in absence of which, non-filing of appeal against one shall attract bar of the principles of res-judicata against another.

(vii) Where more than one appeals are required to be filed or are filed and one or more of them are dismissed for default, delay or any other similar reason, any such situation would attract res judicata and such dismissal would satisfy the requirement of appeal being heard and finally decided on merits “in a former suit” for the purpose of attracting principles of res judicata.”

Applying the principle of res judicata, as enumerated, under Clause (vii) of para 42 of the aforesaid judgment, the additional substantial question of law is required to be decided against the appellant.

Ordered accordingly.

Since, additional substantial question of law No.4, framed on 18.09.2024, has been decided against the appellant, as such, other substantial questions of law become redundant and are not liable to be decided. Thus, the present appeal is liable to be dismissed being hit by the principle of res judicata on account of dismissal of appeal, bearing RSA No.278 of 1995, in default.

Consequently, the present appeal is dismissed. No order as to costs.

Pending miscellaneous application(s), if any, shall also stand disposed of.

Record be sent down.