Sardari Lal vs Swaran Singh

Mahesh Grover, J.—This Regular Second Appeal is directed against judgment and decree dated 15.12.1997 passed by the Additional District Judge, Jalandhar (hereinafter described as `the first appellate Court'') whereby the appeal of the plaintiff-respondent (hereinafter called as `the plaintiff'') was accepted and his suit was decreed while setting aside the judgment & decree dated 27.8.1996 of the Civil Judge (Junior Division), Jalandhar (referred to hereinafter as `the trial Court'').

The plaintiff had filed a suit for possession by pleading that he purchased some property from one Hazara Singh, who had purchased it from Rehabilitation Department being the evacuee property. The sale in favour of the plaintiff took place on 17.5.1968. He was also in possession of some adjoining area and, therefore, he applied to the authorities of the concerned department under the provisions of the Punjab Package Deal Properties (Disposal) Act,1976 for its transfer. The area was demarcated and it was concluded that the land belonged to the plaintiff.

In the meanwhile, the defendant-appellant (described hereinafter as `the defendant'') also claimed his ownership over this property and made an application to the concerned authorities for transfer thereof to him. He thereafter filed Civil Suit No. 190 of 1986 for issuance of permanent injunction restraining the plaintiff from forcibly throwing him out of the property bearing No. BXXXVIII-2792. That suit was dismissed on 18.12.1987 against which an appeal was filed which was accepted on 16.12.1988 and it was held that the plaintiff was owner of the suit property and that he could dispossess the defendant in due course of law. Accordingly, the plaintiff filed the instant suit for possession.

Upon notice, the defendant appeared and filed his written statement denying the averments of the plaintiff. It was pleaded that according to own showing of the plaintiff, the property comprised in khasra Nos. 1404 and 1405 was purchased by him from one Hazara Singh, whereas the entire property comprising in these khasra numbers was never put to auction and that Hazara Singh was not competent to sell the same to the plaintiff and the property was never partitioned. It was further pleaded that the entire khasras were recorded in possession of the owners. It was averred that the suit property had been allotted to him on the basis of continuous possession being plot No. BXXXVIII-2792 and that he had also paid rental charges to the Rehabilitation Department from 1.7.1976 to 31.3.1984. It was further averred that the Civil Court had no jurisdiction to entertain the instant suit. He also claimed that he had raised construction over the suit property which was in the knowledge of the plaintiff and, therefore, he had become owner of thereof by way of adverse possession as well. The alleged sale in favour of the plaintiff was pleaded to be a fraudulent transaction. The possession of the plaintiff over the suit property was also denied. It was pleaded by the defendant that he had applied for allotment of the suit property and the same was transferred to him; that the plaintiff had filed a review petition against the said allotment which was rejected by the department. The demarcation as alleged by the plaintiff was stated to have never been carried out by associating the defendant. The filing of the earlier suit by the defendant was, however, not denied.

The parties went to trial on the following issues:

Whether the plaintiff is owner of the land in dispute?OPP

Whether the plaintiff has no locus standi?OPD

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

Whether the suit is bad for non-joinder of parties?OPD

Whether the suit is time barred?OPD

Whether the Civil Court has no jurisdiction to entertain and try the present suit?OPD

Whether the plaintiff is estopped from filing this suit by his act and conduct?OPD

Whether the plaintiff has become the owner of the property in dispute by way of adverse possession?OPD

Relief.

After appraisal of the evidence on record, the trial Court dismissed the suit on the ground that the property was never partitioned nor defined by way of specific shares and consequently, the plaintiff could be held to be a co-sharer in khasra Nos. 1404 and 1405, but the area measuring 267 sq.yards which was pleaded to be in his ownership in the absence of any demarcation could not be granted in his favour.

In appeal, the findings of the trial Court were reversed and it was held that in the earlier suit, the question of ownership was involved and was determined by the first appellate Court and even though, the suit was for injunction, yet, considering the fact that the question of ownership was substantially and directly involved, the same was decided. The suit of the plaintiff was accordingly decreed.

Hence, this Regular Second Appeal by the defendant.

I have heard the learned Counsel for the parties and have gone through the impugned judgment, as also the records of the Courts below.

In the earlier suit, which was primarily for injunction, the first appellate had observed that the issue of ownership of the suit property was directly and substantially involved since the devolution of the property was from the Rehabilitation Department to Hazara Singh and then to the plaintiff and, therefore, ventured out to answer the same. It concluded that the issue of injunction in the given set of circumstances could not be adjudicated upon without going into the finding regarding the ownership of the property and that the question of ownership, though, not directly involved, but was incidentally involved in the case. It, thus, concluded that the ownership of the plaintiff stood established. These findings recorded by the first appellate Court were never challenged by the defendant by filing any second appeal and consequently, attained finality. Therefore, the same are binding on the parties.

It is also to be noticed that the findings which were recorded were in the proceedings initiated by the defendant. He himself described the suit property as bearing No. BXXXVIII-2792 measuring 267 square yards - 6 sq.feet situated at Bhargo Camp, Jalandhar as fully described in the plaint. The instant suit which has been filed, is regarding the very same property which has been described similarly. In this view of the matter when the parties are at ad idem on the identity of the property, the finding of the first appellate Court in the instant proceedings holding that the plaintiff was owner of the property on the basis of the earlier findings recorded by the Courts below inter se between the parties, cannot be termed to be erroneous.

Once the aforesaid question of ownership is accepted in favour of the plaintiff, as a logical corollary, he is also entitled to possession of the suit property and, therefore, no fault can be found with the reasoning of the first appellate Court, more so, in the earlier suit which was for injunction, the observation of the Courts below was that the defendant could only be dispossessed in accordance with law, which led to the filing of the instant suit for possession by the plaintiff.

Having regard to the aforesaid, I am of the opinion that there is no infirmity in the findings recorded by the first appellate Court and the appeal, being without any merit, is dismissed.