Pirthi v. Bhag Singh & Ors.

Mr. Ramesh Hooda, Advocate for the appellant. Rakesh Kumar Garg, J. This is plaintiff's regular second appeal challenging the judgment and decrees of the Courts below whereby his suit for declaration with consequential relief of permanent injunction, was dismissed. As per the averments made in the suit, Nanha (father of the plaintiff-appellant) and defendants No.10 to 12 and Sish Ram and Shiv Lal were joint owners and co-sharers of 27 Bigha Pukhta situated in village Mandothi Tehsil Bahadurgarh, District Rohtak. In khewat No.6 both Shiv Lal, father and mother of defendant/respondent No.2 and father and mother of defendant-respondent No.1 were owners in possession of equal shares i.e. ½ each. Sish Ram died and his share was inherited by Suraj Kaur, mother of defendant/respondent No.1. Smt. Suraj Kaur sold land measuring 4 bighas 12 biswa pukhta to defendant/respondent No.3 for a sale consideration of Rs.6,000/-. She again on 20.6.1958 sold land measuring 7 bighas 13 biswa to defendant-respondent No.22, vide registered sale deed No.1683. Thereafter, Suraj Kaur sold land measuring 2 bighas 1 biswas pukhta in favour of plaintiff-appellant Pirthi, vide RSA No.4741 of 2009 2 registered sale deed No.1106 dated 11.6.1959. She also sold the land comprised in khasra No.1132 measuring 1 bigha 16 biswa in favour of defendant-respondent No.2, vide registered sale deed No.1107 dated

11.6.1959. Defendant-respondent No.1 sold the land measuring 2 bighas 2 biswas to defendant-respondent No.24 in khewat No.1 on 16.5.1964. He further pleaded that all the aforesaid sale deeds were illegal as they had no authority to sell the specific khasra numbers. A suit for possession by way of pre-emption was filed by father of plaintiff-appellant and defendant- respondents No.5 to 8 against sale of the land by Smt. Suraj Kaur in favour of defendant-respondent No.3 and after obtaining a decree of pre-emption suit, vide judgment dated 20.6.1959, transferred the land in favour of father of defendant-respondents No.13 to 21. A suit for possession by way of pre- emption was filed by Shiv Lal, father of defendant-respondent No.2 which was decreed. Again Smt. Suraj Kaur sold the land measuring 5 bighas 18 biswa in favour of Balde etc. Defendant-respondent No.1 sold the land measuring 5 bighas 1 biswa in favour of defendant-respondents No.26 to

32. Again Smt. Suraj Kaur and defendant-respondent No.1 Smt. Premo also sold the land 3 bigha 17 biswa in excess. The plaintiff-appellant was a bona fide puchaser of Khasra No.1015 measuring 2 bigha 1 biswa pukhta but in the revenue record there was no entry pertaining to this share of the plaintiff. He is still owner and in joint possession being a co-sharer in the suit property. Since his claim was not admitted by the defendants, the present suit was filed. Upon notice, defendants No.4A to 4C 9, 10 & 16 filed joint written statement. Defendants No.18, 20 to 24 filed joint written statement separately and the remaining defendants were proceeded against ex parte. In the written statement, it was submitted that Suraj Kaur had sold the land upto her share. However, the plaintiff-appellant had no right to RSA No.4741 of 2009 3 challenge these sale deeds after a period of 38 years. Defendant No.22 was exclusive owner in possession of the land since the date of its purchase. The plaintiff-appellant was not a bona fide purchaser of the suit land. All other allegations of the plaint were denied. Defendants No.18, 20 and 24 took up the plea of adverse possession also. On merits, it was submitted that the suit of the plaintiff was not maintainable. The vendor was in possession of the land sold in favour of the defendants and since the date of purchase, they were in possession of the same. It was further stated that no one ever objected at the time of sale of specific khasra numbers. All other allegations were denied. On the pleadings of the parties, the following issues were framed by the trial Court: “1. Whether the parties to the suit are owner in joint possession of the suit land which is still unpartition? OPP

2. If issue No.1 is proved affirmative, whether the sale-deed executed by defendant No.1 and his mother are illegal, null and void and liable to be set aside as per the grounds mentioned in the plaint? OPP

4. Whether the suit is barred by limitation? OPD Whether the suit of the plaintiff is not maintainable in the present form? OPD

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

6. Relief.” After hearing learned counsel for the parties and perusing the RSA No.4741 of 2009 4 evidence on record, the trial Court came to the conclusion that the plaintiff- appellant had challenged the sale deeds pertaining to the year 1959, 1964 and 1988 on the ground that Smt. Suraj Kaur and Smt. Prem Kaur were not competent to transfer the specific khasra numbers whereas the plaintiff- appellant was also cultivating the specific khasra numbers and thus, his case falls on this ground alone as he had not come to the Court with clean hands and was not entitled to any equitable relief. It was further held that the suit was hopelessly barred by the law of limitation as suit for declaration could only be filed within a period of 3 years. Resultantly, the suit of the plaintiff was dismissed. Feeling aggrieved therefrom, the plaintiff-appellant filed an appeal before the Lower Appellate Court. Before proceeding on the merits of the case, the Lower Appellate Court found that it was a matter of record that earlier Zile Singh etc. had filed a civil suit No.535 of 1995 titled Zile Singh etc. v. Smt. Prem Kaur etc. challenging the sale deeds pertaining to the year 1959, 1964 and 1988 (subject matter of the present appeal also) on the ground that Smt. Suraj Kaur and Smt. Prem Kaur were not competent to transfer the specific khasra numbers and in that suit Pirthi Singh-appellant was arrayed as a party and had himself appeared before the Court on 20.11.1995 in the said suit in response to the notice issued to him in Civil Suit No.535 of 1995 titled as Zile Singh etc. v. Smt. Prem Kaur etc. and on the same day, he had filed the present suit i.e. Civil Suit No.549 of 20.11.1995 titled as Pirthi v. Smt. Prem Kaur etc. The Lower Appellate Court also found that the issue raised by him in the present suit i.e. Civil Suit No. 549 of 20.11.1995 had already been directly and substantially in issue in the earlier suit No.535 of 1995 titled as Zile Singh etc. v. Smt. Prem Kaur etc. between the same parties. It was also found by the Lower Appellate Court that Civil Appeal titled as Zile Singh etc. v. Smt. RSA No.4741 of 2009 5 Prem Kaur etc. (arising out of Civil Suit No.535 of 1995) was dismissed on the ground of limitation and thus, on the basis of aforesaid facts, the Lower Appellate Court held that the present suit was hit by the principle of res judicata and dismissed the appeal. Still not satisfied from the impugned judgment and decrees of the Courts below, learned counsel for the appellant has filed the instant appeal. Learned counsel for the appellant has vehemently argued that the findings of the Courts below are incorrect and suit of the appellant is not barred by the principles of res judicata. I have heard learned counsel for the appellant. It is matter of record that the issues raised by the appellant in this case were directly and substantially in issue in earlier suit i.e. Civil Suit No.535 of 1995 titled as Zile Singh etc. v. Smt. Prem Kaur etc. between the same parties and the aforesaid suit was dismissed on the ground of limitation. RSA No.4732 of 2009 arising out of the aforesaid suit i.e. Civil Suit No.535 of 1995 has been found without any merit by this Court by the judgment of even date. In this view of the matter, I find no merit in this appeal as the present appeal is hit by the principle of res judicata. No substantial question of law arises. Dismissed. July 20, 2010 (RAKESH KUMAR GARG) JUDGE RSA No.4741 of 2009 6