Meera Sharma and Another vs Jagjit Singh

L.N. Mittal, J.—Defendants Meera Sharma and Dalip Ghai have filed this revision petition under Article 227 of the Constitution of India impugning order dated 24.03.2009 (Annexure P-5), passed by the trial court, thereby deciding the preliminary issue regarding bar of res judicata in favour of plaintiff Jagjit Singh. Petitioner no. 1 had earlier filed a suit against respondent for permanent injunction and mandatory injunction relating to Plot no. 289, Sector 40-A, Chandigarh alleging that respondent agreed to sell the suit plot to petitioner no. 1 and received the entire sale consideration and put the petitioner in possession of the suit plot and necessary documents including agreement to sell, Power of Attorney etc. were executed. The said suit was decreed for permanent injunction only restraining the respondent herein from dispossessing petitioner no. 1 herein from the suit plot. However, the said suit regarding relief of mandatory injunction directing the respondent herein to get registered the General Power of Attorney, Special Power of Attorney and Will, as per agreement to sell dated 14.06.1989, was dismissed, vide judgment and decree dated 19.05.1997 (Annexure P-1), upheld in first appeals, preferred by both the parties, vide judgment dated 16.05.2000 (Annexure P-2) and also by this Court in Second Appeal, vide order dated 04.07.2001 (Annexure P-3).

Now, respondent has filed suit for possession of the suit plot against the petitioners on the basis of title of the respondent-plaintiff. In the said suit, the petitioners, as defendants, inter alia raised the plea that the instant suit is barred by res judicata, in view of finding in the previous suit. The issue no. 4 relating to res judicata, as mentioned below, has been treated as preliminary issue:-

Whether the suit is barred by principle of res-judicata. OPD

Learned trial court, vide order dated 24.03.2009 (Annexure P-5), has held that the instant suit is not barred by res judicata. Feeling aggrieved, defendants have filed this revision petition.

I have heard counsel for the parties and perused the case file.

Counsel for the petitioners very vehemently and emphatically contended that in view of finding in the previous suit that petitioner no. 1 is in possession of the suit property, having paid the entire sale consideration, the instant suit for possession filed by respondent, is not maintainable. It was pointed out it was held in the previous suit that all the documents including agreement to sell and Power of Attorney etc. had been executed by respondent herein. Counsel for the petitioners contended that in view of aforesaid findings, the respondent-plaintiff has no right to seek possession of the suit plot from the petitioners.

All the aforesaid contentions are completely misconceived and irrelevant for the decision of present revision petition. The said contentions can be raised before the trial court and are yet to be adjudicated because by now, only preliminary issue relating to bar of res judicata has been decided by the trial court, vide impugned order (Annexure P-5). The aforesaid contentions do not relate to the bar of res judicata. The instant suit is for possession on the basis of title. Counsel for the petitioners conceded that plaintiff continues to be owner of the suit plot because registered conveyance deed has not yet been executed in favour of the petitioners. However, whether the plaintiff is entitled to seek possession of the suit plot or not on the basis of his title, is yet to be decided by the trial court on merits. In the previous suit, the question of title was not decided being suit for injunction. Even otherwise, in view of admission by counsel for the petitioners that respondent continues to be owner of the suit plot, the instant suit cannot be said to be barred by res judicata, in view of finding in the previous suit.

In the aforesaid circumstances, I find no perversity, illegality or jurisdictional error in impugned order of the trial court so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition is devoid of merit and is accordingly dismissed. However, it is expressly made clear that I have not expressed any opinion on merits of the contentions raised by counsel for the petitioners and the same may be adjudicated by the trial court, in accordance with law, at appropriate stage. It also goes without saying that findings recorded in the previous suit shall remain binding on the parties.