Krishan Kumar & Ors. v. M ehinder

represented by his legal representatives appellant-plaintiffs (hereinafter to be referred as “the plaintiffs”) filed the suit seeking a decree of declaration to the effect that they have acquired the occupancy rights in the land in dispute, with a consequential relief of permanent injunction restraining Mandir Darbari Lal, Meham and others respondent-defendants (hereinafter to be referred as “the defendants”) from prosecuting the three recovery suits filed on 16.11.1982,

14.11.1985 and 30.10.1991 in this respect.

The case set up by the plaintiffs, in brief, in so far as relevant, was that they are continuously in cultivating possession of the land in dispute as tenants for the last more than 100 years at a yearly rent of Rs.13.50 P. Defendant No.1 was stated to have given the land for cultivation to the predecessor-in-interest of Banwari Lal (since deceased) in 18th century.

Narrating the sequence of events and levelling a variety of Regular Second Appeal No.3119 of 2008 2 allegations, in all, according to the plaintiffs that they are cultivating the land in dispute from the time of their father and fore fathers as tenants at fixed rent of Rs.13.50 P per year and thus acquired the occupancy rights, but the defendants have filed the recovery proceedings against them without any legal basis. On the basis of aforesaid allegations, the plaintiffs filed the suit for a decree of declaration and permanent injunction against the defendants in the manner indicated here-in- above.

The defendants contested the suit and filed the written statement, inter-alia, pleading certain preliminary objections of, maintainability of suit under Order 2 Rule 2 CPC, locus standi, cause of action of the plaintiffs, misjoinder, nonjoinder of necessary parties, jurisdiction, limitation and res-judicata. The defendants claimed that the plaintiffs had earlier filed civil suit No.82 of 1983 seeking therein a decree of declaration to the effect that they (plaintiffs) were in possession of the suit land as tenants on payment of rent of Rs.13.50 P per year and that the entries in the revenue record since 1951-52 upto date in the entry of cultivation were illegal, void and not binding upon their rights, (the relief which has now been sought in the present suit). The first suit was ultimately dismissed on merits on 20.11.1989. The appeal filed by the plaintiffs was also dismissed on

30.7.1991. Further RSA was also dismissed by the High Court. SLP filed by the plaintiffs was dismissed as well by the Hon'ble Apex Court on 3.8.1992. According to the defendants, father of Banwari Lal plaintiff (since deceased) cultivated the suit land from 1951-52 on payment of 1/3rd share of produce (batai) till his death in the year 1979. After his death, the plaintiffs, being his successors, are cultivating the land on payment of 1/3rd share of produce (batai). It will not be out of place to mention here that the defendants have stoutly denied all other allegations contained in the plaint and prayed for dismissal of the suit.

Controverting the allegations contained in the written statement and reiterating the pleadings of the plaint, the plaintiffs filed the replication. In the Regular Second Appeal No.3119 of 2008 3 wake of pleadings of the parties, the trial Court framed the necessary issues for proper adjudication of the case.

The parties brought on record the oral as well as documentary evidence, in order to substantiate their respective stands.

Having completed all the codal formalities and on ultimate analysis of evidence on record, the trial Court dismissed the suit of the plaintiffs, vide impugned judgment and decree dated 13.1.2005.

Aggrieved by the judgment and decree of the trial Court, the appellant-plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, vide impugned judgment and decree dated 23.4.2008.

The appellant-plaintiffs still did not feel satisfied with the impugned judgments and the decrees of the Courts below and filed the present appeal.

Having heard the learned counsel for the appellant-plaintiffs, having gone through the record with his valuable help and after bestowal of thoughts over the entire matter, to my mind, there is no merit in the appeal.

As is evident from the record that the plaintiffs had earlier filed civil suit No.82 of 1983 against the defendants claiming therein a decree of declaration to the effect that the land in dispute was in their possession as tenants on payment of rent of Rs.13.50 P per year and that the entries in the revenue record since 1951- 52 upto date pertaining to column of cultivation were illegal, void and not binding upon their rights.

It is not a matter of dispute that the Ist suit was ultimately dismissed on merits on 20.11.1989. The appeal filed by the plaintiffs was also dismissed on

30.7.1991. Further RSA was also dismissed by this Court. SLP filed by the plaintiffs was dismissed as well, by the Hon'ble Apex Court on 3.8.1992. That means, the issues raised in the instant suit have already been finally decided against the plaintiffs upto the Hon'ble Supreme Court and the same cannot legally be re-agitated in the second suit. Regular Second Appeal No.3119 of 2008 4

However, the main celebrated contention of the learned counsel that since the previous judgments in the earlier suit/appeals were illegal, based on exclusion and misreading of relevant evidence, so, the same will not preclude the plaintiffs to claim the same relief in the present suit, is not only devoid of merit but misplaced as well.

As described here-in-above, since the judgments and decrees rendered in the previous suit were upheld by the Hon'ble Apex Court, so, it cannot possibly be saith in the present suit that the same were illegal, as urged on behalf of the appellant-plaintiffs. On the contrary, to me, the same would deeply operate as res-judicata. Moreover, no injunction can legally be granted to them to restrain the defendants from prosecuting the recovery suits. Thus, the Courts below have rightly negatived their claim in this relevant connection.

All other arguments, relatable to the appreciation of evidence, now sought to be urged on behalf of the appellant-plaintiffs, in this relevant behalf, have already been duly considered and dealt with by the Courts below.

There is another aspect of the matter, which can be viewed from a different angle, the trial Court as well as the first Appellate Court has taken into consideration and appreciated the entire relevant evidence brought on record by the parties in the right perspective. Having scanned the admissible evidence in relation to the pleadings of the parties, the Courts below have recorded the concurrent findings of fact that the plaintiffs are though in cultivating possession of the suit land but at the rate of 1/3rd batai. The civil court decree dated

20.11.1989 is a legal one and is not liable to be set aside. They have lost upto the Hon'ble Supreme Court. They have not acquired the rights of occupancy tenants over the suit property. Such pure concurrent findings of fact based on the evidence, cannot possibly be interfered with by this Court, while exercising the powers conferred under section 100 CPC, unless and until, the same are illegal and perverse. No such patent illegality or legal infirmity has been pointed out by the Regular Second Appeal No.3119 of 2008 5 learned counsel for the appellant-plaintiffs, so as to take a contrary view, than that of well reasoned decision already arrived at by the Courts below, in this regard.

Meaning thereby, the entire matter revolves around the re- appreciation and re-appraisal of the evidence on record, which is not legally permissible and is beyond the scope of second appeal. Since no question of law, much less substantial, is involved in the second appeal, in view of law laid down by Hon'ble Supreme Court in case Kashmir Singh v. Harnam Singh & Anr. 2008 (2) R.C.R. (Civil) 688 : 2008 AIR (SC) 1749, so, no interference is warranted, in the impugned judgments/decrees of the Courts below as contemplated under section 100 CPC, in the obtaining circumstances of the present case.

No other legal point, worth consideration, has either been urged or pressed by the learned counsel for the appellant-plaintiffs.