Piru vs Balbir Singh and Others

Satish Kumar Mittal, J.—This is a defendant''s Regular Second Appeal against the judgments and decree, passed by both the courts below, whereby suit of the plaintiffs for declaration and possession has been decreed.

In this case, the dispute is about 82 kanals 1 marla of land situated in village Ba-hri, Tehsil and District Jind. With regard to this land and some other land, defendant No. 1 (appellant herein) filed Civil Suit No. 537 of 1971, only against the Gram Panchayat of the Village, for declaration to the effect that the suit land was Jumla Malkans land, which was partitioned, and he had become owner of the same. The said suit was decreed on 16.12.1971 on the admitted written statement filed by Telu Singh, Sar-panch of the Gram Panchayat, who was none else, but the real brother of defendant No. 1. On the basis of the said decree, mutation No. 718 was sanctioned in favour of defendant No. 1. Subsequently, on 25.2.1978, the plaintiffs (respondents No. 1 and 2 herein) filed the instant suit in a representative capacity on behalf of all the right holders of the village under Order 1 Rule 8 CPC, for recovery of possession of the suit land, by seeking declaration that the judgment and decree dated 16.12.1971 is null and void, collusive and ineffective against the rights of the proprietors of the suit land, who were not party to the suit.

Defendant No. 1 contested the suit on the ground that the alleged Jumla Malkan and Deegar Haqdaran have no right, title or interest in the suit land, and he is owner in possession of the suit land since time immemorial. The decree dated 16.12.1971 was not collusive and the same is binding on the plaintiffs. The pleas of limitation, res judicata and suit being not properly valued for the purpose of court fee were also taken.

On the pleadings of the parties, the following issues were framed:

(1) Whether the judgment and decree dated 16.12.1977 passed by the court of Sh. V.K. Jain, the Sub Judge 1st Class, Kaithal in suit No. 537 is null and void to the extent of the land in dispute? OPP

(2) Whether the mutation No. 719 of village Bahri attested on 8.4.72 is null and void and is not effective against the rights of the plaintiff in respect of the suit land? OPP

(3) Whether the decree and judgment dated 18.12.76 passed by Sh. M.K. Bansal, Sub Judge, 1st Class, Jind, in suit No. 163/1 is not binding on the rights of the plaintiff to the extent of the suit land? OPP

(4) Whether the defendant No. 1 is the owner in possession of the suit land since the time immemorial? OPD

(5) Whether the suit is within limitation? OPD

(6) Whether the suit is not maintainable in the present form? OPD

(7) Whether the suit has not been properly valued for the purposes of court fee and jurisdiction? OPD

(8) Whether the suit is barred by the principle of res-judicata? OPD

(9) Whether the plaintiffs have no locus standi to file the present suit? OPD

(10) Whether the suit is bad for multifariousness? OPD

(11) Whether the plaintiffs are estopped and barred from filing the present suit by their acts and conduct? OPD

(11-A) Whether the defendant No. 1 has become the owner of the suit land by way of adverse possession? OPD

(12) Relief.

The trial court decreed the suit while holding that the decree dated 16.12.1971 and mutation No. 718 are illegal, null and void and not binding on the rights of the plaintiffs to the extent of the land in dispute. Issue No. 5 regarding limitation was decided in favour of the plaintiffs, while holding that the main relief in the suit was for recovery of possession of immovable property on the basis of title and such suit is governed by Article 65 of the Limitation Act, which provides a period of 12 years as limitation.

Issue No. 8 regarding res-judicata was also decided in favour of the plaintiffs. The said objection was taken by defendant No. 1 on the ground that performa defendants No. 4 to 6, who were the proprietors in the Jumla Malkhans land, filed Civil Suit No. 163/1 of 1974 against him for declaration that the decree dated 16.12.1971 was illegal, null and void and the said suit was dismissed on 18.12.1976. Therefore, a plea was taken that the instant suit filed on behalf of all the proprietors in representative capacity is barred by the principle of resjudicata. The trial Court decided the issue of res-judicata against defendant No. 1 while holding that in suit No. 163/1 of 1974, filed by three proprietors, the suit land was claimed as property of the Gram Panchayat. They did not claim their right in the suit property as proprietors of the village.

On issue No. 7 regarding affixation of court fee, it was held that the suit filed by the plaintiff was properly valued for the purpose of court fee and jurisdiction.

Feeling aggrieved against the said judgment and decree, defendant No. 1 filed appeal, which has been dismissed and findings recorded by the trial court on all the issues have been affirmed.

Learned Counsel for the appellant (defendant No. 1) assailed the findings of both the courts below on the issues of limitation, res-judicata and court fee. He submitted that when the instant suit was filed on 25.2.1978, title of the suit land was with defendant No. 1 by virtue of decree dated 16.12.1971 (Ex.P3) and mutation (Ex.P7). Therefore, without getting the declaration regarding these two documents, the plaintiffs could not claim the possession of the suit land. Regarding the limitation, he contended that since the limitation to file a suit for declaration is three years under Article 58 of the Limitation Act, therefore, both the courts below have erred in law, while deciding the issue of limitation against the appellant by observing that since the main relief sought in the suit is for recovery of possession of the immovable property on the basis of title, therefore, the suit is governed by the provision of Article 65 of the Limitation "Act, which provides the limitation of 12 years, when possession of the defendant became adverse to the owner. In support of his contention, learned Counsel relied upon the decision of the Supreme Court in Hardesh Ores Pvt. Ltd. Vs. Hede and Company, and submitted that the foundation relief in the instant suit is declaration and if the foundation relief is time barred, then the relief for possession, which is based upon the foundation relief, cannot be decreed.

After hearing counsel for the appellant and going through the findings recorded by both the courts below on issue No. 5 regarding limitation, I do not find any illegality in the said findings. From the reading of the plaint, it is clear that the main relief sought in the suit is for recovery of possession of the immovable property on the basis of title. The declaration sought in the present suit is ancillary relief Therefore, the instant suit is to be governed by the provision of Article 65 of the Limitation Act, which provides a period of limitation of 12 years countable from the date, when possession of the defendant became adverse to the plaintiff. In the instant suit, there is not even an iota of evidence led by the plaintiffs to prove that possession of the defendant on the suit land was adverse to them. I do not find any substance in the contention of the appellant (defendant No. l) that though the main relief was the suit for possession, but the same is based on the foundation seeking declaration for setting aside the decree dated 16.12.1971, therefore, the suit is to be governed by Article 58 of the Limitation Act, which provides limitation of 3 years. The appellant has not challenged the findings of both the courts below recorded on issues No. 1 and 2. Even otherwise, it is not disputed that the decree dated 16.12.1971 was passed only on the basis of admitted written statement filed by the then Sarpanch of the Gram Panchayat of the village, who was none else but bother of defendant No. 1 and he was the only party to the suit. Undisputedly, none of the proprietors of the village was party to the said suit. When the suit land was recorded to be owned and possessed by Jumla Malkhans, then proprietors of the village were the necessary; parties, who were not impleaded therefore, both the courts below have rightly held that the said decree is illegal and void to the extent of the suit land and the same is not binding on the rights and interest of the proprietors of the village. Therefore, both the courts below have rightly come to the conclusion that the main relief sought in the suit is for recovery of possession on the basis of title and the declaration to the effect that the decree is not binding on the rights of the plaintiffs was ancillary relief. In the similar circumstances, in Captain Sodhi Harnam Singh and Another Vs. Kanshi Ram and Others, , it was held by a Division Bench of this Court that in order to find out as to what is the real character of a suit, which would determine the applicability of an article, one has to look not merely to the form of the relief claimed but to all the facts and circumstances admitted or proved in the case. The question in each case is what in substance the plaintiff claims and what are the actual facts on which it is based.

Counsel for the appellant next argued that both the courts below have erred in law as well as facts while deciding issue No. 8 regarding res-judicata. It has not been disputed that in civil suit No. 163/1 of 1974, which was filed by defendants No. 4 to 6, it was claimed that the property in dispute was of the Gram Panchayat and the decree dated 16.12.1971 was wrongly passed. In that suit, those defendants who may be among the right holders of the village, did not claim their right in the suit property as proprietors. It has also not been disputed that the said suit was not in the representative capacity, whereas the present suit has been filed on behalf of all the right holders of the Jumla Malkhans. Learned Counsel submitted that the judgment dated 18.12.1976, passed in civil suit No. 163/1 of 1974 will operate as res judicata between the parties. In this regard, he has relied upon the provision of Explanation VI of Section II C.P.C., which provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.

In my opinion, the Explanation VI of Section 11 C.P.C. is not applicable in the present case. To attract this explanation, the following conditions must be established as has been held by this Court in Chuhar Singh Lachhman and Others Vs. Raghbir Singh and Others, :

(1) that there must be a right claimed by one or more persons in common for themselves and others not expressly named in the suit;

(2) that the parties not expressly named in the suit must be interested in such right; and

(3) that the litigation must have been conducted bonafide on behalf of all parties interested.

On analysis of the facts of the present case, it is clear that none of the above conditions has been fulfilled. In civil suit No. 163/1, of 1974, three persons, who filed the suit, never claimed that the suit land was owned and possessed by right holders of the Jumla Malkans. Their claim was only that the suit land belongs to the Gram Panchayat, therefore, it cannot be said that they were pursuing the suit in the common interest. Rather, the instant suit has been filed by the proprietors in representative capacity claiming that the suit land is owned by the right holders and the decree dated 16.12.1971 suffered by the Gram Panchayat was illegal and void and in the suit, the decree was passed on the basis of admitted written statement filed by the Sarpanch of the Gram Panchayat, in which no other person was party.

Lastly, learned Counsel for the appellant argued that in the instant suit, the proper court fee has not been affixed by the plaintiffs, therefore, the suit is liable to be dismissed. The contention of the appellant is that separate court fee is to be paid by the plaintiffs for each relief. He submitted that in the instant suit, the plaintiffs sought for declarations and all the declarations are not ancillary relief, but the same are foundation relief. Therefore, the plaintiffs are liable to pay court fee on each declaration, separately. 1 do not find any substance in this argument, raised by learned Counsel for the appellant. Admittedly, in the instant suit, the court fee was paid by the plaintiffs in accordance with the provisions of Section 7(iv)(c) read with the Section 7(v) of the Court Fees Act, as amended by the State of Haryana, by valuing the suit land for the greater relief of possession. Once the plaintiffs hive paid the court fee for the greater relief of possession, in my opinion, they are not required to pay the separate court fee for all the four reliefs.

No other argument has been raised by learned Counsel for the appellant. In view of the above, I do not find any ground to interfere in the impugned judgments and decree, passed by both the courts below. Dismissed.