Ajaib Singh & Ors. v. Amar Singh & Ors.

Mr. Baljit Puri, Advocate, for the appellants. … ARVIND KUMAR, J: This is plaintiffs’ second appeal directed against the judgments and decrees of the Courts below whereby their suit for possession and permanent injunction has been dismissed. Plaintiffs in their plaint pleaded that Sant Kaur wife of Santa Singh was owner of 1/6th share in the land as detailed in the body of the plaint. Joginder Singh, Gurnam Singh, Babu Singh, Gurdev Singh, Nazar Singh, Teja Singh, Dial Singh, Dial Kaur and Gurnam Singh are sons and daughters of said Sant Kaur, out of whom Dial Kaur and Gurnam Kaur have since expired and their legal heirs have been impleaded as party. Plaintiffs stated that Ginder Singh, Gurnam Singh, Babu Singh sons of Sant Singh were owners to the extent of 3/54 share in the share of Sant Kaur, but Gurdev Singh, Nazar Singh, Teja Singh and Dial Singh got mutation of her 1/6th share sanctioned in thir favour in connivance with revenue officials on the basis of decree passed in civil suit No. 481 of 7.10.1970, titled Gurdev Singh etc. v. Sati Singh, decided on 4.11.1970. In the present suit, challenge by the plaintiffs is to this decree as null and void, being unregistered forming no title on Ginder Singh and others. It was further alleged that Gurdev Singh and Nazar Singh have died and their legal heirs had been impleaded as defendants and later on the death of Teja Singh, his widow Nachhattar Kaur was also impleaded as defendant. It was also alleged that plaintiff No.1 has 1/54 share, plaintiffs 2 to 5 have 1/54 share while plaintiffs No. 6 and 7 have 1/54 share and in the remaining property of Sant Kaur, plaintiff No.1 has 1/54 share. Plaintiffs 2 to 5 have 1/54 RSA No. 2356 of 2008 -2- share whereas plaintiffs 6 and 7 have also 1/54 share. Plaintiffs alleged that the defendants were asked to admit their claim but they refused to do so. Hence, the suit. Upon notice of the suit, defendants, 3,4,7,22,16,17,30,36,24,25,34 and 39 in their written statement took the objection that the suit of the plaintiffs is not maintainable since earlier also, they had filed similar type of suit on the same cause of action which was dismissed as withdrawn on the basis of compromise and the present suit filed without permission of the Court is not maintainable and that otherwise also, the suit was barred by time They pleaded that they(defendants) are in continuous possession of the suit land for the last more than 30 years and their possession as such has ripened into ownership. They denied that Gurnam Singh, Babu Singh sons of Santa Singh were co-owners to the extent of 3/54 share in the estate of Sant Kaur. They further denied that Gurdev Singh, Nazir Singh, Teja Singh and Dial Singh in connivance with revenue officials got sanctioned the mutation regarding the estate of Sant Kaur in their favour. They also denied that decree dated 4.11.1970 is illegal and void but the same being legal, the mutation was rightly sanctioned on the basis of said judgment and decree. Defendants stated that the plaintiffs have no share in the property so transferred by Sant Kaur in their favour. Trial Court on appreciation of evidence brought on record, vide judgment and decree dated 6.8.2004 held that as per jamabandi for the year 1997-98, village Nat, Tehsil Dhuri, plaintiff No.1 has 1/54 share; plaintiffs 2 to 5 have 1/54 share and plaintiffs 6 and 7 have 1/54 share each in the estate left by Sant Kaur and are entitled to get possession and dismissed the suit as regards permanent injunction restraining the defendants from alienating the share of Sant Kaur to the extent of 3/5 share of the plaintiff and from disposing of the same. Aggrieved from the judgment and decree of the trial Court, appeal was preferred by some of the plaintiffs but that too was dismissed by the first appellate Court vide judgment and decree dated 7.12.2007. Hence, the present second appeal by the plaintiffs. Both the Courts below on appreciation of evidence, have concurrently held that the suit of the plaintiffs is barred under the provisions of Order 23 rule 1 Code of Civil Procedure. The first appellate RSA No. 2356 of 2008 -3- Court in this regard, in para 11 of the judgment after enumerating the provisions, has held as under:- “11. xxx xxx xxx A bare reading of this section shows that once a party has abandoned its claim in a suit or proceeding and have withdrawn the suit or claim, then that party is barred to claim the same in fresh suit, if they have not taken any permission to file a fresh suit on the same cause of action from the Court from where suit was withdrawn. It has been held in a case law reported in 2007(4) RCR (Civil) page 89, once the suit is filed and is withdrawn unconditionally, then even if the principle of res judicata may not apply in strict sense because there is no adjudication on issue but at the same time the plaintiff is debarred from seeking decree on the same grounds on the principle of abandonment of claim. So from the bare reading of Order XXIII rule 4 CPC coupled with the latest pronouncement, it is clear that once a party withdraw the suit while abandons the claim, the party is barred to file fresh suit on the same cause of action, if no permission has been taken from the Court to file a fresh suit on the same cause of action and in the instant case it stands duly proved as Ex.D-3 of order dated 31.7.1982 that earlier Babu Singh, Gurnam Singh and Ginder Singh filed a suit in which the decree, which has been challenged in the present suit, was also challenged in that suit, was got dismissed as withdrawn on the basis of compromise which is also proved on the record as Ex.D-

4. A perusal of order Ex.D-3 dated 31.7.1982 shows that plaintiffs Babu Singh, Gurnam Singh and Ginder Singh got the suit dismissed as withdrawn without taking any permission to file the fresh one and the appellant Ginder Singh was also plaintiff in that suit and remaining appellants are the successors of Babu Singh and Gurnam RSA No. 2356 of 2008 -4- Singh. Since that suit was got dismissed as withdrawn on the basis of compromise effected between the parties without taking any permission to file fresh one, hence the argument raised by the learned counsel for the appellant that the withdrawal of the earlier suit has got no effect on the merits of this case, is devoid of any force.” As regards the plea of the plaintiffs that decree dated 4.11.1970 was never registered being of the value of more than Rs.100/- , the same has been rejected by the Courts below in view of judgment of the Hon’ble Supreme Court in Som Dev and others v. Rati Ram and another, 2006(4) RCR (Civil) 303, in which the Hon’ble Supreme Court has held that decree of Civil Court based on family arrangement does not require registration as the decree does not create any title for the first time in a party. In the present case, the decree which is between mother and the sons who have a pre-existing right in the property, the same did not require any registration. It was thus, held that the plaintiffs have miserably failed to produce any concrete evidence to substantiate their claim. Nothing has been shown that the findings of fact so recorded by the Courts below suffer from any infirmity or are contrary to the record. No question of law, muchless substantial, arises in the present appeal. Consequently, the appeal being without any merit is hereby dismissed in limine. March 26, 2009 JS ( ARVIND KUMAR ) JUDGE