Lohrey v. Har Chandi & Ors.

Present:- Mr. S.K.Chauhan, Advocate, for Mr. R.M.Singh, Advocate, for the appellant. Mr. Ashok Kaushik, Advocate, for the respondent. Gurdev Singh, J (oral) This is the second appeal preferred by the appellant/plaintiff- Lohrey against the judgment and decree dated 12.1.2008 passed by the Additional District Judge, Faridabad, vide which she dismissed the first appeal preferred by this plaintiff against the judgment and decree dated

23.2.2006 passed by the Civil Judge (Jr. Division), Palwal, dismissing his suit for declaration to the effect that he is in possession of 5 bighas/1 acre of land by virtue of the compromise dated 1.8.1885 entered into with him by defendant No.1/respondent No.1 and others and that revenue entries in favour of defendants No. 1 and 10 to 12 are wrong and not binding upon him and that lease deed dated 17.7.1998 executed by defendants No. 2 to 8A in favour of defendant No.9 in respect of ¼th share in the suit land is illegal and is not binding upon his rights and that defendant No.9 has no right to cultivate that land under the garb of the said lease deed, as well as his suit R.S.A. No. 1957 of 2008 (O&M) -2- for consequential relief of injunction restraining the defendants to interfere in his possession over that land. He also made a prayer in the plaint that in case he is not found to be in possession of land in dispute, then decree of possession/joint possession be also passed in his favour. The case of the plaintiff is that he along with defendants No. 1 to 8 and 12 to 14 is recorded as Bhondedara in possession of agricultrual land measuring 35 Kanals 9 Marlas situated within in the revenue estate of village Bedha Patti Hodal. On 25.6.1985, he was caused simple and grievous hurts by defendant No.1 and his sons as well as by Mohar Pal, Hukam and Sukh Ram, regarding which FIR No. 67 dated 26.6.1985 was registered against them under Section 325/34 IPC. During the pendency of the criminal case, a compromise was entered into between them, which was reduced into writing on 1.8.1885. As per that compromise defendant No.1 and other accused agreed to gave 5 bighas of land to him and also promised to get revenue enteries corrected in his name. It was on the basis of that compromise that defendant No.1 and his co-accused were acquitted and as such the same is binding upon them. By virtue of that copromise defendant No.1 has no right to interfere in his cultivating possession of 5 bighas of land. Defendants No. 2 to 8A executed lease deed dated 17.7.1999 in favour of defendant No.9 for a period of 99 years, though they had no right to do so. This lease deed is illegal and not binding on his rights and is liable to be set aside. Defendants have threatened to interfere illegally in his possession, which neccessitated the filing of the suit for declaration and permanant injunction. The suit was contested by defendants No. 1, 2, 5, 7, 8 and 10 to 12 R.S.A. No. 1957 of 2008 (O&M) -3- and 9A to 9E (Successors-in-interest of defendant No.9). All the defendants, except resondent No.9A to 9E, filed a joint written statement, in which they denied the contentions of the plaintiff. They pleaded that they are coming in possession of the disputed land to the extent of their share, which has already been partitioned. No such agreement or promise or compromise was entered into by them at any time. A false story has been concocted by the plaintiff to grab their land. The plaintiff has no locus standi to file the suit and the same is not maintainable. He is estopped from filing the same by his act and conduct. Defendants No. 9A to 9E in their written statement contested the claim of the plaintiff by denying the contentions raised therein. They pleaded that the palintiff never remained in possession of any such land. Previously also the lease deed in their favour was challenged in civil suit No.869 of 1991, which was dismised by Civil Judge Palwal on 28.2.1996. The present suit has been filed by the plaintiff with a mala fide intention. On the pleadings of the parties, following issues were framed by the trial Court:-

1. Whether the plaintiff is owner in possession of 5 bigha land by way of compromise dated 1.8.85 made by defendant No.1 and others, as alleged? OPP

2. Whether the revenue entries in favour of defendants are wrong and liable to be corrected?OPP

3. Whether the lease deed dated 17.7.89 illegally executed by defendants No. 2 to 8A in favour of defendants No. 9, 9A to 9E in respect of 1/4th share in the suit land is illegal, null and R.S.A. No. 1957 of 2008 (O&M) -4- void?OPP

4. Whether the mutations No.3758 and 4194 are illegal and not binding?OPP

5. Whether the plaintiff is entitled for decree of permanent injunction?OPP

6. Whether the plaintiff has no locus standi to file the present suit?OPD.

7. Whether the suit is not maintainable?OPD

8. Whether the plaintiff is estopped from filing the present suit by his own act and conduct?OPD.

9. Whether the plaintiff has got no cause of action to file the present suit?OPD.

10.Whether the plaintiff has not come with clean hands before this Court?OPD. 10-A Whether the present suit is barred by the principle of resjudicata?OPD

11.Relief. On the basis of the evidence produced by the parties and after hearing learned counsel on their behalf, the learned trial Court decided issues No.1 to 9 against the plaintiff and issues No. 10 & 10-A in his favour and resultantly dismissed his suit. The plaintiff, as already said above, filed first appeal against that judgment and decree, which was dismissed. I have heard learned counsel for both the sides. It has been submitted by learned counsel for the plaintiff that the compromise so pleaded in the plaint was proved on the record as Ex.P/5. R.S.A. No. 1957 of 2008 (O&M) -5- Defendant No.1 and his co-accused voluntarily caused hurt and grevious hurt to the plaintiff for which they were tried by the criminal Court and during the course of those proceedings said compromise was effected and as per that compromise defendent No.1 gave 5 bigha of land to the plaintiff and he aquired ownership regarding that land and as such he is entitled to the declaration prayed in the suit. He also submitted that the plaintiff is coming in possession of that land and as such defendants are to be perpetually restrained from interfering in his possession. According to him the terms of that compromise, have been wrongly interpreted by the trial Court and the first appellate Court and as such the substantial question of law arise in the present appeal:- "Whether the plaintiff had become the owner of 5 bigha of land on the basis of compromise?" The contents of the compromise Ex.P/5 were read over by learned counsel for the plaintiff and were admitted by the other side. He also referrred to the judgment of the criminal Court, which was passed on the basis of that compromise. No doubt the compromise was made the basis for acquitting defendant No.1 and the other accused for the offences which were committed by them against the plaintiff, but it is not mentioned in the compromise Ex.P/5 that defedandant No.1 had given or had agreed to give 5 bigha of land to the plaintiff. As per that compromise partition was effected between the parties and 5 bighas of land was given to each one of them. No such 5 bighas of land was given to the plaintiff by defendant No.1 and as such he never became the owner in possession of 5 bigha of land. Correct findings were recorded by the trial Court on the basis of R.S.A. No. 1957 of 2008 (O&M) -6- the evidence produced by the parties. There is no such mis-reading of the evidence by those Courts nor the findings recorded by them are perverse. Thus, no such substantial question of law arises in the present appeal. In the result this second appeal is hereby dismissed. October 4, 2010 tripti (Gurdev Singh) Judge