Smt. Amar Kaur (died) through LRs & Ors. v. Sarwan Singh (died) through LRs & Ors.

The plaintiffs/appellants have filed the present second appeal under Section 100 of the Code of Civil Procedure, challenging the judgment and decree dated 7.2.1979 passed by the learned trial Court, dismissing the suit of the plaintiffs for declaration and injunction and judgment and decree dated 01.10.1982 passed by the first Appellate Court, thereby dismissing the first appeal filed by the plaintiffs/appellants.

2. The brief facts of the present case are that plaintiffs filed the suit for declaration and injunction in respect of the land measuring 13 kanals and 15 marlas comprising in khasra Nos.3384/1 RSA No.2432 of 1982 (O&M) 2 to 1962. The plaintiffs alleged that they were owners in possession of the said land which was allotted to them by the Rehabilitation Department in the year 1950 and that the defendant-respondents were threatening to dispossess them from the land in dispute. Hence they filed the suit. The defendants/respondents controverted the allegations made in the plaint. As per the defendants/respondents, the land measuring 10 kanals and 19 marlas out of the suit land was allotted to the predecessor-in-interest of defendants/respondents Nos.1 to 3 and the rest of the disputed land was allotted to defendant No.4 by the Rehabilitation Department. According to the defendants/respondents, they are the true owners being allottee by the Rehabilitation Department.

3. On the pleadings of the parties, the following issues were framed by the learned trial Court:- “1. Whether the Civil Court had no jurisdiction to try this suit?OPD.

2. Whether the plaintiffs are owners in possession of the suit land and the suit is maintainable in the present form?OPD.

3. Whether the defendants have perfected their title by adverse possession?OPD.

4. Relief.”

4. Learned trial Court dismissed the suit of the plaintiffs/appellants by holding that Rehabilitation Department allotted the property in dispute in favour of the defendants prior to the alleged allotment in favour of the plaintiffs. It is further held that after the valid allotment in favour of the defendants by the Rehabilitation Department, same land could not be allotted in favour of the plaintiffs. RSA No.2432 of 1982 (O&M) 3

5. In the appeal, learned first Appellate Court on the request of both the parties, summoned the relevant record through Halqa patwari. Learned first Appellate Court by exercising power under order 41 rule 27(1)(b) C.P.C., with the consent of the parties, examined patwari on oath. Learned first Appellate Court perused the relevant record summoned by the first Appellate Court and has observed as under:- “A perusal of the documents i.e. Exts.P.9, P.3, D.9 and D.15 further shows that the allotment of the property in dispute in the names of the predecessor-in-interest of the defendants/respondents Nos.1 to 3 and defendant/respondent No.4 were made earlier in time than the allotment made in the name of Kirpal Singh, predecessor-in-interest of the plaintiffs/appellants. The serial number of allotment in the name of Kirpal Singh stands at No.12 in the relevant record referred to above and the allotments names of predecessor-in-interest of the defendants/respondents Nos.1 to 3 and defendant/respondent No.4 is made vide serial Nos.8 and 11. It is also relevant to refer to the statement of Malkiat Singh Patwari who was examined by the defendants as DW1 and who stated on oath that possession of the property in dispute to the allottees i.e. Partap Singh, predecessor-in- interest of defendants/respondents Nos.1 to 3 and Sucha Singh was given on 30.3.1950, whereas possession is further subsequently shown to be delivered to the predecessor-in- interest of the plaintiffs/appellants on

31.3.1950. The patwari further stated that RSA No.2432 of 1982 (O&M) 4 there was no khasra No.3384/1 to 1962 in existence in the Jamabandi after the year 1938-39. The statement of Shri Nasib Singh AW1 recorded in this court further shows that actually same property was allotted twice i.e., the predecessor-in-interest defendants/respondents Nos.1 to 3 and defendant/respondent No.4 and subsequently to the predecessor-in-interest of the plaintiffs and this fact resulted in the dispute between the parties and hence litigation. The above discussed evidence leaves no doubt that the allotment of the property in dispute was first made by the Department to the predecessor- in-interest of defendants/respondents Nos.1 to 3 and defendant/respondent No.4.”

6. Learned Counsel for the appellants vehemently argued that since defendants/respondents filed suit for possession pertaining to property in dispute being Civil Suit Ni.426 of 2006 in the Court of Civil Judge, Junior Division, Hoshiarpur, which was stayed under Section 10 of the Code of Civil Procedure, awaiting the result of the present appeal, hence, possession of the plaintiffs is admitted to the defendants/respondents. Hence, suit for injunction ought to have been decreed. Learned Counsel for the appellants further argued that effect of filing of subsequent suit by the defendants/respondents, seeking possession from the plaintiffs, is a substantial question of law.

7. In reply to the arguments advanced by learned Counsel for the appellants, learned Counsel for the defendants stated that undisputedly suit for possession filed by the defendants/respondents was stayed under Section 10 C.P.C., hence, mere filing of the suit RSA No.2432 of 1982 (O&M) 5 would not attract principle of resjudicata. He further argued that subsequent suit for possession shall abide by the decision in the present appeal. Learned Counsel for the defendants argued that plaintiffs are claiming injunction on the basis of title and applying the principle that none can seek injunction against the true owners, plaintiffs are not entitled for any injunction.

8. Undisputedly, Appellate Court before confirming the finding of fact recorded by the learned trial Court, with the consent of the parties, summoned the relevant official record and having perused the relevant record came to the conclusion that allotment in favour of the defendants was prior to the alleged allotment made in favour of the plaintiffs. No infirmity or perversity has been pointed out by the learned Counsel for the appellants.

9. In view of the above, I am of the view that mere filing of subsequent suit for possession by the defendant would not make plaintiffs entitled to seek injunction. Once defendants were held to be true owners and plaintiffs were found having no interest in the title of the property, hence, both the Courts below have committed no illegality while dismissing the suit. In my humble opinion, no substantial question of law arises in the present appeal.

10. Hence the appeal, being devoid of merit, must fail and the same is dismissed with costs. February 26, 2010 ashish (ALOK SINGH) JUDGE