Khiali Ram vs Kanshi Ram

Rakesh Kumar Jain, J.—The defendant is in second appeal against the judgment and decree of the Courts below by which suit filed by the

plaintiff for possession has been decreed.

In brief, the plaintiff filed a suit for possession in respect of the land measuring 11 Kanals 07 Marias comprised in Square No.268, Killa

No.23/l(l-16), Square No.285 Killa Nos.3 (4-11), 8/1(5-0), situated in village Ding, Tehsil and District Sirsa. It is alleged by him that he has

purchased the suit land on 16.06.1971 but the defendant, in collusion with the revenue authorities, succeeded in getting the khasra girdawari in his

name and on the basis of this wrong entry has forcibly occupied it, though no batai was ever paid by him. In the written statement, the averments

made in the plaint were denied and it was alleged that the plaintiff had earlier filed a suit in respect of the suit land which was dismissed by the

learned Sub Judge, Sirsa on 28.01.1982, therefore, the present suit is not maintainable. On the pleadings of the parties, following issues were

framed on 16.02.1983:-

Whether the plaintiff purchased the suit land through a registered sale deed No.1324 dated 16.06.1971? OPP

Whether the sale deed dated 16.06.1971 is a forged one? OPD

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

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

Relief.

Both the parties led their respective oral as well as documentary evidence. The defendant did not challenge the finding recorded by the learned

Trial Court before the learned First Appellate Court on issues Nos.1 and 2, however, issues Nos.3 and 4 were keenly contested by him, but the

learned First Appellate Court dismissed the appeal on the ground that the earlier suit filed by the plaintiff was dismissed in default of appearance

but that order could not have been passed under Order 9 Rule 8 of the Code of Civil Procedure, 1908 [for short ""CPC""] except for under Order

9 Rule 3 of CPC and as such, the second suit is maintainable.

Learned counsel for the appellant has raised two grounds to attack the judgment and decree of the Courts below: i) that the earlier suit filed by

the plaintiff was dismissed in default under Order 9 Rule 8 of CPC, therefore, in terms of Order 9 Rule 9 of CPC the second suit on the same

cause of action is not maintainable, and ii) that the Civil Court had no jurisdiction to try the suit as the defendant has been recorded as tenant at

Will in the khasra girdawari and for that matter the remedy was available to him u/s 9 of the Punjab Security of Land Tenures Act, 1953 [for short

the Act of 1953""]. Elaborating his arguments, learned counsel for the appellant has drawn the attention of this Court to the order dated

28.01.1982 passed in the earlier Civil Suit No.583 dated 19.06.1980 titled as ''Kanshi Ram v. State of Haryana and others'', which is reproduced

as under:-

Present: Sh. Jagroup Singh, G.P. for the State;

***** ***** ***** ***** ***** ***** **********

The case was called a number of time today. None on behalf of the plaintiff have come present. The suit is hereby dismissed U/O 9 Rule 8 CPC. It

is 3.00 p.m.

Announced.

28.01.1982.

Sirsa.

Sd/-

Sub Judge, Ist Class,

28.01.1982

He has further drawn the attention of this Court to Order 9 Rule 9 of CPC which provides that where a suit is wholly or partly dismissed under

Order 9 Rule 8 of CPC, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action, but he may apply for

setting aside the dismissal order by assigning sufficient cause for his non-appearance when the suit was called for hearing. In this regard, learned

counsel for the appellant has submitted that the word used in Order 9 Rule 9 is ""shall be precluded from bringing a fresh suit in respect of the same

cause of action"".

Learned counsel for the plaintiff/respondent has submitted that the cause of action in both the suits is altogether different and for that matter he

has read cause of action in the first suit which was filed on 19.06.1980, which is as under:-

That the cause of action arose to the plaintiff firstly on 16.06.1971, when the land was purchased by the plaintiff from Ghansham Dass vendor and

finally a week back from the flat denial of the defendant to admit the request of the plaintiff?

In the first suit, the plaintiff had sought decree for declaration to the effect that he is the owner in possession of land measuring 11 Kanals 07

Marks purchased by him from one Ghansliam Dass vide sale deed dated 16.06.1971 on the basis of which he is entitled to get his name entered as

owner and also prayed for consequential relief of permanent injunction restraining the defendant from mutating the land in favour of State

Government or leasing it out to other persons illegally and unauthorisedly and also prayed for possession in case he is not found in possession.

The cause of action shown in the present suit is as under:-

That the cause of action firstly arose to the plaintiff on 05.11.1978 when on the basis of bogus report No.66 in the Report Roznamcha of the

Patwari, the defendant got the khasra girdawari corrected in his name and occupied the land forcibly sad is continuing since then and lastly about a

week back when the defendant refused to hand over the possession of the suit land.

After hearing learned counsel for the parties in this regard, I am of the view that the provisions of Order 9 Rule 9 of CPC would not apply to the

present case because the cause of action in both the suits are altogether different. In the earlier suit, the plaintiff has claimed himself to be the owner

in possession and had sought relief of permanent injunction and as a matter of abundant caution the possession was also claimed in case he is

dispossessed or not found in possession, whereas in the second suit he has alleged that he has been dispossessed and claimed only possession,

therefore, both the suit were on different cause of action and hence, the first contention raised by learned counsel for the defendant is hereby

rejected.

Learned counsel for the appellant has further raised the second issue that the Civil Court had no jurisdiction to try the suit because the

defendant has been recorded as tenant at Will in khasra girdawari and as such the remedy was with the Revenue Court by way of seeking eviction.

Learned counsel for the respondent/plaintiff has submitted that an entry in the revenue record as ghair maurusi is not sufficient to confer status

of tenant because even a person in unauthorized possession is described as such. In this regard, he has relied upon a decision of this Court in the

case of Ram Karan v. The Financial Commissioner and others, 1980 P.L.J. 295 and has submitted that Section 9 of the Act of 1953 lays down

grounds for the land owner to seek ejectment of the tenant. He also submitted that in the khasra girdawari, the defendant is recorded as tenant

ghair maurusi billa lagan bawajah muhadia bai, meaning thereby that he was found to be in possession as tenant at Will without payment of rent

because of agreement to sell. Thus, there is no relationship of landlord and tenant between the parties which could attract Section 9 of the Act of

1953 for the purpose of excluding the jurisdiction of the Civil Court for filing the suit for possession.

No other point has been raised by learned counsel for the appellant..

In view of the aforesaid discussion, I do not find any question of law much-less substantial as provided u/s 100 of CPC involved in this appeal and

as such, the present appeal is hereby dismissed, however, without any order as to costs.