Rajinder vs Mani Ram and Others

L.N. Mittal, J.—This is second appeal by Rajinder defendnat No. 1.

Suit was filed by respondents No. 1, 2, 5 and 6 against Rajinder appellant as defendant No. 1 and against respondents No. 3 and 4 impleading them as proforma defendants No2 and 3. The plaintiffs alleged that they along with proforma defendants No. 2 and 3 are owners in possession of 40 kanals land in suit and defendant No. 1 has no concern therewith. Decree passed in Civil Suit No. 512 dated 07.01.1994 in favour of defendant No. 1 against one Birbal was also challenged in the suit, along with consequent mutation based on the said decree.

Defendant No. 1 contested the suit and alleged that decree passed in Suit No. 512 dated 07.01.1994 is legal and valid and revenue entries in favour of plaintiffs and proforma defendants are wrong. Defendant No. 1 also alleged that decree dated 10.05.1996 was passed in suit instituted by Raja Ram plaintiff No. 4, Banwari proforma defendant No. 2 and Vidya Devi against Rajender defendant No. 1 and against Mani Ram plaintiff No. 1 impleaded as proforma defendant No. 2 in the said suit No. 396 dated 08.10.1994. Vide judgment dated 10.05.1996 in said suit No. 396 of 1994, defendant No. 1 was declared to be owner in possession of 16 kanals 13 marlas land out of the total suit land measuring 40 kanals.

Learned Civil Judge(Junior Division), Siwani vide judgment and decree dated 07.03.2003 decreed the plaintiff''s suit partly declaring the plaintiffs and proforma defendants No. 2 and 3 to be owners of the suit land except 16 kanals 13 marlas land. Defendant No. 1 did not challenge the judgment and decree of the trial Court by filing first appeal. However, plaintiffs No. 1 and 4 filed first appeal against judgment and decree of the trial Court. Learned Addl. District Judge, Bhiwani vide judgment and decree dated 15.03.2007 allowed the first appeal and decreed the suit in favour of plaintiffs and proforma defendants in toto. Feeling aggrieved, the instant second appeal has been preferred by defendant No. 1.

I have heard learned Counsel for the parties and perused the case file.

At the outset, it has to be noticed that the judgment and decree of trial Court have attained finality as against defendant No. 1 who did not challenge the same by filing first appeal. Consequently, dispute in the instant second appeal preferred by defendant No. 1 is only regarding 16 kanals 13 marlas out of the total suit land, regarding which the suit was dismissed by trial court but has been decreed by the lower Appellate Court.

Learned Counsel for the appellant vehemently contended that vide judgment and decree dated 10.05.1996 Exhibit D/1 and D2 passed in previous suit No. 396 of 1994, appellant/defendant No. 1 was declared to be owner in possession of 16 kanals 13 marlas out of the total suit land and the said judgment and decree have not been challenged in the instant case and therefore, the judgment and decree of the lower Appellate Court decreing the suit of the plaintiff qua said 16 kanals 13 marlas land as well, are illegal and unsustainable.

On the other hand, learned Counsel for the respondents contended that judgment and decree dated 10.05.1996 were not in the knowledge of the plaintiffs who could not, therefore, challenge the same.

I have carefully gone through the rival contentions. Following substantial question of law arises for determination in the second instant appeal:

Whether judgment and decree of lower Appellate Court regarding 16 kanals 13 marlas land out of the total suit land for which the suit was dismissed by the trial Court but has been decreed by the lower Appellate Court, are perverse and illegal and, therefore, unsustainable?

Perusal of judgment and decree dated 10.05.1996 Exhibits D/1 and D/2 reveals that defendant No. 1 was declared to be owner in possession of 16 kanals 13 marlas out of the total suit land. The said judgment and decree have not been challenged in the instant suit or in any other suit or proceeding. Consequently, ownership and possession of defendant No. 1 appellant over 16 kanals 13 marlas land could not be set aside by the lower Appellate Court. The contention of Counsel for the respondents that plaintiffs had no knowledge of the judgment and decree dated 10.05.1996 cannot be accepted because the said judgment and decree were pleaded in the written statement by defendant No. 1. Inspite thereof, the plaintiffs did not even file replication to the said written statement as is apparent out from the judgment of the trial Court in which it has been observed in paragraph 11 that replication was not to be filed by the plaintiffs. The plaintiffs thus stated that they did not want to file replication. The judgment and decree dated 10.05.1996 having attained finality and having not been challenged on any ground in the instant suit, could not be ignored by the lower Appellate Court on the ground that the same were based on unregistered affidavit produced in that suit. In fact, this observation of the lower Appellate Court is also erroneous because defendant No. 1 was declared to be owner in possession of 16 kanals 13 marlas land vide judgment and decree dated 10.05.1996, not on the basis of transfer of that land by way of affidavit produced in that suit, but on the basis of evidence led in that suit. The affidavit did not transfer ownership of the suit land to defendant No. 1. The affidavit rather stated that tenancy qua the said land had been surrendered. It was on this basis as well as on the basis of other evidence that it was held in judgment and decree dated 10.05.1996 the defendant No. 1 was proved to be owner in possession of 16 kanals and 13 marlas out of the total suit land. The said finding attained finality and could not be ignored or set aside by the lower Appellate Court in the instant suit, particularly when the said judgment and decree dated 10.05.1996 were not even challenged.

From the aforesaid discussion, it is apparent that judgment and decree passed by lower Appellate Court decreeing the suit of the plaintiffs even regarding 16 kanals 13 marlas out of the total suit land, for which the suit was dismissed by the trial Court, are perverse and illegal and unsustainable in the eyes of law. Accordingly, answer to the substantial question of law framed hereinabove is rendered in favour of the appellant.

For the reasons recorded hereinabove the instant second appeal is allowed to the extent that impugned judgment and decree dated 15.03.2007 passed by the learned Addl. District Judge, Bhiwani are set aside and judgment and decree dated 07.03.2003 passed by trial Court are restored.