Vidya Wanti vs Netar Parkash

G.C. Garg, J.—This appeal initially came up for final disposal before G.R. Majithia, J. (as his Lordship then was) when the following order

was passed by his Lordship on 31.3.1992 :

The defendantappellant has come up in regular second appeal against the judgment and decree of the first appellate Court affirming on appeal

those of the trial Judge.

The facts :

The plaintiffrespondents (hereinafter to be referred to as the plaintiffs) filed a suit for permanent injunction for directing the defendantappellant

(hereinafter to be referred to as the defendant) to demolish the wall constructed upon an area measuring 5'' x 5'' marked ''ABCD'' shown in red in

the site plan annexed with the plaint. They also challenged the validity of the decree dated February 21, 1979 passed by Sh. N.K. Bansal, the then

Subordinate Judge Ist Class, Chandigarh. They claimed that they were owners of House No. 388, Mohalla Gujran Wala, Mani Majra, along with

the passage and House No. 389 belonging to the defendant adjoined theirs. A street of the width of 7 feet leads from the main road to their house.

In June, 1981, the defendant encroached upon some of the area of that street measuring 5'' x 5'' by constructing a wall and thus leaving a passage

of only 2 ft. wide for the plaintiffs. The encroachment was challenged in the suit.

The defendant controverted the pleas of the plaintiffs and stated that she had filed a suit for Possession of the disputed site against the

predecessor ininterest of the plaintiffs. The suit was decreed by decree dated February 21, 1979 passed by Sh. N.K. Bansal, the then Subordinate

Judge Ist Class, Chandigarh, and in execution thereof, she recovered the possession of the disputed site.

The plaintiffs in the replication pleaded that the decree dated February 21, 1979 was collusive and thus null and void and not binding on them.

From the pleadings of the parties, the trial Judge framed the following issues :

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

(2) Whether the plaintiff is entitled to declaration and injunction prayed for ? OPP

(3) Relief.

Issue No. 1 was decided in favour of the plaintiffs and it was held that the judgment and decree dated February 21, 1979 would not operate as res

judicata since the disputed site in that suit was not connected with the site in the instant suit; issue No. 2 was partly decided in favour of the

plaintiffs and it was held that the plaintiffs were not entitled to declaration but were entitled to the injunction prayed for and, on ultimate analysis, the

suit was decreed partly.

The defendant aggrieved against the judgment and decree of the trial judge assailed the same in first appeal. The first appellate Court affirmed

the same, inter alia, holding that the disputed site in the decree dated February 21, 1979, has not been connected with the property in the present

suit.

The courts below have not correctly appreciated the scope and ambit of the pleadings of the parties. The defendant in para 5 of her written

statement pleaded thus :

Para 5 of the plaint is incorrect. In the judgment and decree dated 21.2.1979 passed by Sh. N.K. Bansal, Sub Judge Ist Class, Chandigarh,

property was decided to be the property of defendant and therefore, the possession of site measuring 5'' x 5'' was obtained by defendant through

execution. The objection against the said decree filed by Hari Chand, Tara Singh and Inder Singh were dismissed by the Court.

The plaintiffs filed replication to the written statement and in reply to para 5 thereof stated thus :

That para No. 5 of the written statement is wrong and hence denied. The decree passed by Sh. N.K. Bansal, HCS, the then Sub Judge is not

binding on the plaintiff and is not a judgment in rem.

The defendant also raised a preliminary objection saying that the matter in dispute had already been decided by the Court of Shri N.K. Bansal,

Sub Judge Ist Class, Chandigarh in the suit No. 119 of 1977 on February 21, 1979 and the said judgment operates as res judicata. Reply of the

plaintiffs to the preliminary objection was in the following terms :

That para No. 1 of the preliminary objection is wrong and hence denied. The alleged judgment is not binding on the plaintiff as it is not between

the parties. Moreover, the alleged judgement was procured by filing a collusive suit in order to take possession of the land which is not allotted to

the defendant.

A reading of the respective pleas points out that the plaintiffs did not dispute the defendant''s version that the property in suit was the same as in

Suit No. 119 of 1977 decided on February 21, 1979. Presuming that there was no dispute between the parties that the subjectmatter in dispute in

Suit No. 119 of 1977 decided on February 21, 1979 is the same as in the instant suit, the trial judge proceeded to frame issue No. 1 as stated

above. While deciding issue No. 1, the Courts below jumped to the conclusion that the property in dispute in Suit No. 119 of 1977 decided on

February 21, 1979 was not the same as in the instant case. It is unfortunate that the Courts below did not properly comprehend the pleadings of

the parties and proceeded to adjudicate upon matter which was not in issue. Otherwise, an issue ought to have been framed whether the property

in suit is the same as in Suit No. 119 of 1977 decided on February 21, 1979.

In order to do justice to the parties, it is desirable that report be sent for from the Senior Subordinate Judge, Chandigarh to the effect whether

the property in the instant suit is the same as in Suit No. 119 of 1977 decided on February 21, 1979. The Senior Subordinate Judge will appoint

either an architect of repute or a revenue officer not below the rank of Tehsildar as a commission, who will go to the spot and take measurement of

the property in suit and of the property in dispute in Suit No. 119 of 1979 decided on February 21, 1979 and also report whether the two

properties are the same. After receipt of the report, the Senior Subordinate Judge will give opportunity to the parties to file objections, if any, to

the report and thereafter submit the same to this court through the District Judge, Chandigarh, who in turn will also submit his report after hearing

the parties. The report should be submitted within six months and on receipt of the report, the RSA be enlisted for hearing.

Learned Senior Sub Judge, Chandigarh in pursuance of the order of this Court appointed Tehsildar, Union Territory, Chandigarh as local

commissioner to visit the site and to submit his report in terms of the directions contained in the order of the High Court as reproduced above. The

local commissioner visited the site and submitted his report dated 29.8.1992. The local commissioner on the basis of his inspection of the site,

reported that site marked with letters A.I.G.S. in the site plan, exhibit P2 in Civil Suit No. 119 of 1979 and the area marked with letters ABCD

shown in the site plan Exhibit PW7/A in the present suit tally with each other and the same was marked by him by letters PQRS in the site plan

prepared by him and attached with his report. In the result, the report of the local commissioner is that the area in Suit No. 119 of 1979 marked by

letters AIGS and the area in the present suit marked by letters ABCD in the site plan Exhibit PW7/A is one and the same. Learned Senior

Subordinate Judge also noticed that the disputed site in civil suit No. 119 of 1979 as depicted in Exhibit P2 in proceedings of that case and the site

as shown in exhibit PW7/A in the suit of the year 1986 is the same. Learned Subordinate Judge on receipt of the report adjourned the case so as

to enable the parties to file objections to the report of the local commissioner. The parties did not file any objection to the report and only learned

counsel for the decreeholder put in appearance before him. He ultimately concluded that the report of the local commissioner has remained

unchallenged and unobjected. The report was forwarded to learned District Judge for onward transmission to the High Court. Learned District

Judge also afforded opportunity of hearing to the parties but none of the parties said a word against the report of the local commissioner or

challenged the report. Learned District Judge consequently forwarded the report to this Court. Report of the local commissioner as made, has

already been noticed by me in the earlier part of this order.

Shri G.S. Bhatia, Advocate has put in appearance on beahlf of Mohinder Singh son of Pirthi Singh who is none else but the purchaser from the

plaintiffs during the pendency of the suit. I have heard him as learned counsel for the appellant had no objection in that behalf. Learned counsel for

the vendee from the respondents submitted that the site in dispute is a part of the path and the same was found as such by the local commissioner. I

have considered the submission. It may or may not be so, but once the predecessor of the plaintiffs suffered a decree, it does not lie in his mouth to

contend that the site in dispute is a part of the path, which area was held to be the ownership of the defendantappellant.

The precise question in this case was, whether the site in dispute was the same which was the subject matter of the earlier suit between the

predecessor of the present plaintiffs and the defendantappellant. In view of the fact that the site in question is the same, the plaintiffs who are none

else but the successorsininterest of Hari Chand defendant in the earlier suit are bound by the decree passed in civil suit No. 119 of 1979 and thus

had no right to challenge the decree by filing the present suit. In that view of the matter, this appeal is allowed and the judgment and decree under

appeal is set aside and the plaintiff''s suit is dismissed with costs which are assessed at Rs. 500/.