Braham Dass vs Tulsi Dass

Tarlok Singh Chauhan, J.—This appeal is directed against the judgment and decree dated 03.04.2002 passed by the learned Additional District Judge, Solan, in Civil Appeal No. 30-S/13 of 2001 whereby he accepted the appeal filed by the plaintiffs and set aside the judgment and decree dated 01.08.2001 passed by the learned Sub Judge Ist Class, Arki, in Civil Suit No. 118/1 of 1994.

The facts in brief are that the plaintiffs/respondents had filed a suit for declaration with consequential relief of permanent prohibitory injunction pleading therein that the plaintiffs are owners in possession of land comprised in Khasra No. 196, measuring 4 biswas situated at Arki as per decision passed by the learned Sub Judge Ist Class, Arki vide its judgment and decree passed in Civil Suit No. 24/1 of 1982 decided on 30.12.1983. It was averred by the plaintiffs/respondents that that the defendants/appellants without any right, title and interest are threatening to raise construction over the vacant portion of the land appurtenant to the cowshed which is Katcha and in possession of the defendants/appellants, who have not been held owners in possession of the land under the cowshed by the Civil Court and the defendants have got no right, title or interest to change the nature of the structure because they are not the owners of the land under the structure and hence in permissive possession of the cowshed which is katcha one. The defendants without any right, title or interest have started changing the nature of the cowshed and are threatening to make it permanent by engaging labour and for that purpose the defendants/appellants on 14.06.1994 stacked sand near the cowshed and they are also threatening to construct the vacant land appurtenant to the cowshed. The plaintiffs/respondents further averred that the defendants/appellants have also got the mutation entered in their favour contrary to the judgment and decree of the Civil Court which is void and the plaintiffs/respondents are not bound by the illegal orders of the Revenue Officers and an appeal against the mutation is pending which has been adjourned sine die by the Collector and the Patwari in league with the defendants/appellants has incorporated note of mutation in the jamabandi in violation of pendency of appeal and stay orders. It was also averred by the plaintiffs/respondent that during the pendency of the suit and despite stay of operation of mutation No. 967, the Patwari Halqua made change in the jamabandi for the year 1994-95 which fact came to their knowledge on 24.09.1998 from the settlement authorities of Arki and the plaintiffs/respondents obtained the copy of the same and they had also informed the A.C.2nd Grade, Arki vide application dated 22.01.1997 that the Collector had stayed the operation of mutation No. 967 and thereafter an application was also moved to the Settlement Officer, Arki under registered cover apprising him the position on 26.05.1998. The plaintiffs/respondents averred that the Revenue Officers have attested the mutation illegally and arbitrarily during the pendency of the suit and prayer for decreeing the suit was made.

The defendants/appellants filed written statement wherein they took preliminary objections that the suit is barred by the principle of res judicata under Section 11 of CPC and the suit is not maintainable and the plaintiffs/respondents have no right to enforce in the Court of law as they had also filed a Case No. 79/1 of 1989 and another case, as such, the suit of the plaintiffs/respondents is barred under Order 2 Rule 2 CPC. It was averred that the plaintiffs/respondents are estopped to file the present suit by their acts, conduct and deeds as they had made a statement in Case No. 77/1 of 1987 whereby the plaintiffs/respondents admitted not to throw water in the land of the defendants/appellants and no cause of action accrues in favour of the plaintiffs/respondents. It was also averred that the plaintiffs/respondents are not owners of Khasra No. 196 and the same was created through mutation No. 148 and in Case No. 24/1 of 1982 the learned Court had assessed the value of the suit property as Rs. 1,500/- and the suit was only decreed to the extent of Rs. 1,500/- with costs and the same was paid to the plaintiffs/respondents in execution Case No. 7/1085 dated 07.06.1985. The defendants/appellants averred that the plaintiffs/respondents have no right, title and interest in Khasra No. 196/1 as mentioned in Case No. 24/1 of 1982 and the defendants/appellants are not in permissive possession of the land and the plaintiffs/respondents have filed the suit with a view to harass the defendants/appellants. A prayer for dismissal of the suit was made.

Plaintiffs/respondents filed replication and reasserted and reaffirmed the averments made in the plaint.

The following issues were framed by the learned trial court on 14.01.1997:-

Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction as prayed? OPP.

Whether in the alternative the plaintiffs are entitled to the relief of vacant possession of the suit land by way of mandatory injunction as prayed? OPP

Whether the defendants are violating the judgment and decree of civil suit No. 24/1 of 1982 titled as ''Tulsi Dass vs. Mohan Lal'' decided on 30.12.1983, if so its effect? OPP

Whether the suit is barred by the principle of res judicata ? OPD

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

Whether the suit is barred u/o 2 rule 2 CPC? OPD

Whether the plaintiffs are estopped to file the suit by their act and conduct? OPD

Whether the plaintiffs have got no enforcement cause of action? OPD

Relief.

Thereafter, following additional issue was framed by the learned trial Court on 04.11.1999:-

Issue No. 8-A

Whether the entries incorporated in the jamabandi for the year 1994-95 qua Khasra No. 196 splitting the same into Khasra No. 648/196 measuring 2 biswa are illegal and void as alleged. If so, its effect? OPP.

Thereafter, again two more additional issues were framed by the learned trial Court on 17.05.2001:-

Issue No. 8-B

Whether the map of Khasra No. 196 is wrongly prepared as alleged? OPD

Issue No. 8-C

Whether the defendants have already made the payment of compensation of Rs. 1500/- to the plaintiffs as per judgment and decree dated 30-12-1983 in civil suit No. 24/1 of 1982. If so, its effect? OPD.

The learned trial Court after recording the evidence and evaluating the same dismissed the suit, however, in appeal the judgment and decree passed by the learned trial Court was reversed and the suit of the plaintiffs/respondents was decreed. It is against this judgment and decree that the present appeal has been preferred before this Court. This Court vide order dated 09.07.2002 was pleased to admit the appeal on the following substantial questions of law:-

Whether in view of the decision of the subject matter of dispute in civil suit No. 24/1 of 1982, the subsequent suit by the respondents could not be entertained on account of principle of res judicata and bar as contained under order-2 rule- 2 CPC; and that the respondents were estopped to file this suit?

Whether the Lower Appellate Court has misconstrued and mis-appreciated the documents exhibit PW-2/C, exhibit PW-2/D, exhibit PW-2/E, exhibit PW-2/F and exhibit DW-1/M, exhibit DW-1/N and exhibit DW-3/B?

Since the judgment and decree and civil suit No. 24/82 has been satisfied as per exhibit DW-1/F order dt. 3.6.1985 passed by the Ld. Sub Judge, Arki in execution, therefore, present suit could not be entertained?

Whether in view of admission of the claim of the appellants by the respondents in civil suit No. 77/1 of 1987 dt. 2.8.1988 as per exhibit PW-2/D and exhibit PW-2/G, the present suit merit dismissal?

Since all the substantial questions of law are interconnected and inter-related, the same are collectively taken up for consideration.

The entire case hinges on the construction and effect of the earlier judgment and decree passed in Civil Suit No. 24/1 of 1982 titled ''Tulsi Dass Gupta versus Mohan Lal Gupta''. The appellants in that suit had raised a plea of adverse possession which had been negatived by the Court in Para 19 of the judgment. The plaintiffs/respondents were held to be the owners in possession of the suit land except the constructed area measuring 2 biswas comprised in Khasra No. 196/1. Even qua this khasra number the plaintiffs/respondents were specifically held to be the owners, however, since the predecessor-in-interest of the defendants/appellants had raised the construction over the same, he was directed to compensate the plaintiffs/respondents by paying a sum of Rs. 1,500/-. This would be clear from the operative portion of the judgment which reads as follows:-

"In view of the above discussion I hold that the plaintiffs are the owner in possession of the suit property and the defendants have failed to prove their adverse possession. As far as relief for mandatory injunction is concerned that is dismissed, but in the circumstances as observed by me the pecuniary compensation is adequate relief and I pass a decree for Rs. 1500/-, along with cost. A decree sheet be prepared accordingly. The file be consigned to the record room after its due completion."

The learned counsel for the appellants would then contend that the appellants are owners in possession of the suit land after having paid a sum of Rs. 1,500/- to the plaintiffs/respondents. I am afraid this submission of the defendants/appellants cannot be countenanced because by simply paying the compensation, the defendants/appellants did not acquire any right, title or interest over the property, but only compensated the plaintiffs/respondents for illegal construction carried out by them or else the same would have been pulled down. Even otherwise, in case such pleas are upheld, then it would essentially mean that on payment of market value any person having financial means after paying the market value would become the owner thereof. The observations made in the judgment are clear and unambiguous and cannot be construed in a manner as sought by the appellants.

Insofar as the question of possession is concerned, it was clearly held by the Court in the earlier litigation that the plaintiffs/respondents were owners in possession of the suit land because the predecessor-in-interest of the defendants/appellants had failed to prove his adverse possession or any other title over the same.

It has come on record that the revenue authorities have split up Khasra No. 196 into Khasra No. 648/196, measuring 2 biswas by virtually granting rights of ownership upon the defendants/appellants that too purportedly on the basis of the decree passed in the earlier litigation. This action of the revenue authorities is absolutely illegal and based upon complete misreading and misinterpretation of the judgment and decree. As observed earlier, the amount of Rs. 1,500/- paid by the defendants/appellants was only compensation which did not create any right, title or interest in favour of the defendants/appellants.

The learned counsel for the defendants/appellants would then contend that the suit was barred by the principle of res judicata . I am afraid that there is no merit even in this contention. The suit filed earlier by the plaintiffs/respondents was for the grant of a decree to the following effect:-

"a) Issuing mandatory injunction ordering demolition of the katcha structure unauthorisedly and illegally constructed by the defendants above over portion of Khasra No. 196/1 and for vacant possession after removing the material of the structure.

b) Issuing permanent/prohibitory injunction restraining the defendants above from making any additions, alterations, repairs and enlargement by way of any work of construction of any kind in the unauthorized structure over the land appurtenant to the structure towards the western and northern sides comprising Khasra No. 196/1 measuring 2 biswas situate at Arki, Tehsil Arki, District Solan, H.P."

Similarly, the present suit has been filed claiming therein a decree for declaration to the following effect:-

"A decree for declaration to the effect that the entries incorporated in the jamabandi for 1994-95 qua Khasra No. 196 splitting the same into Khasra No. 648/196, measuring 02 biswas are void which are against the judgment and decree of the Civil Court and against stay of mutation issued by the Collector with consequential relief for permanent prohibitory injunction restraining the defendants from raising any construction over any vacant portion of Khasra No. 196 measuring 4 biswas be passed with costs. Also a decree for permanent prohibitory injunction restraining the defendants from changing nature of the cowshed located over Khasra No. 196, more particularly, making it permanent from Katcha be passed with costs."

A perusal of the reliefs claimed in the earlier suit and the present suit and also the cause of action would clearly go to show that at the time of filing of the earlier suit, the relief as claimed in the subsequent suit was not at all available to the plaintiffs/respondents and, therefore, neither the provisions of Order 2 Rule 2 CPC nor the provisions of Section 11 CPC would be applicable to the facts of the present case.

Undoubtedly, the principle of res judicata is founded on a fundamental doctrine of law, that there must be an end to litigation, but would that mean that once the suit has been filed on a entirely different cause of action and with entirely different prayer, would the same operate as res judicata for all times to come. I am afraid that this is not the position of law. A fresh cause of action having accrued would definitely give rise to a fresh suit.

In order to decide the question whether the subsequent proceedings are barred by res judicata , it is necessary to examine the question with reference to:-

i) the form or a competence of the Court;

ii) the party and the representatives;

iii) matters in issue;

iv) matters which ought to have been made ground for defence or attack in the former suit; and

v) the final decision.

Therefore, in order to succeed in a defence of res judicata , it is necessary to not only show that the cause of action was the same but also that the plaintiff had an opportunity of getting the relief which he is now seeking in the subsequent proceedings. The test is whether the claim in the suit or proceedings is infact founded upon same cause of action which was the foundation of the former suit or proceedings. Applying the test to the present case, it can safely be concluded that the principles of res judicata are not attracted to the facts of the case.

Now, let me test the arguments of the learned Senior Counsel for the appellants regarding the applicability of Order 2 Rule 2 CPC.

Order 2 Rule 2 CPC reads thus:-

"2. Suit to include the whole claim.-(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim.--Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs. - A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation:- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."

The aforesaid provisions indicate that if the plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the Court in one suit as Order 2 Rule 2 CPC is based on the cardinal principle that the defendant should not be vexed twice for the same cause. One of the objects of Order 2 Rule 2 CPC is to avoid multiplicity of litigation.

As already observed by me, the cause of action to the claim or reliefs as now sought by the plaintiffs were not available to the plaintiffs at the time of filing of the previous suit nor was there any occasion for the plaintiffs to have claimed the reliefs as have been now sought in the present suit. This would be clear from the perusal of the reliefs in both the suits which have been quoted in extenso hereinabove.

The learned Senior Counsel for the appellants would then contend that since the execution of the judgment and decree passed in the earlier suit has been disposed of as having been fully satisfied, therefore, the present suit could not have been entertained. This contention is equally without any merit because the plaintiffs/respondents by filing execution had sought the recovery of Rs. 1,500/- awarded in the earlier litigation as compensation in lieu of refusal of grant of mandatory injunction and having recovered the same through the process of the Court, I fail to understand as to how that would affect the maintainability of the present suit.

Lastly, the appellants would contend that there is an admission of claim of the appellants by the plaintiffs/respondents in Civil Suit No. 77/1 of 1987 dated 02.08.1988 as per Ex. PW-2/D and Ex. PW-2/G. Suffice it to say that in the said litigation, the dispute related to the flow of water from the projection of the respondent and he undertook to place a single line of bricks to prevent the same. It was on this basis that the suit was compromised. How that would affect the entertainability and maintainability of this suit is, therefore, beyond comprehension.

Accordingly, all the substantial questions of law are answered against the appellants.

In view of the aforesaid discussion, I find no merit in this appeal. The stand taken by the appellants is nothing short of being cantankerous. This conclusion is being arrived at because even in the earlier suit the defence of the defendants/appellants was based upon only on adverse possession and it is settled law one who claims adverse possession has no equities in his favour. Accordingly, the appeal is dismissed with costs of Rs. 25,000/-.

Pending application, if any, also stands disposed of.