Kumar and Others Raj Kumar and Others v. Sunita and Others Sunita and Others
Case Details
RSA-4887-2015 2015 (O&M) -1- 230 IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH AT CHANDIGARH RSA-4887-2015 (O&M) RSA Reserved on: 11.08.2025 Reserved on: 11.08.2025 Pronounced on: 18.08.2025 Pronounced on: Kumar and Others Raj Kumar and Others .....Appellants VERSUS Sunita and Others Sunita and Others .....Respondents HON'BLE MS. JUSTICE MANDEEP PANNU CORAM: HON'BLE MS. JUSTICE MANDEEP PANNU HON'BLE MS. JUSTICE MANDEEP PANNU Present: Mr. Santosh Kumar Tripathi, Advocate Mr. Santosh Kumar Tripathi, Advocate Mr. Santosh Kumar Tripathi, Advocate for the appellants. for the appellants. Mr. Sukhandeep Singh, Advocate for Mr. Sukhandeep Singh, Advocate for Mr. Sukhandeep Singh, Advocate for Mr. Lokesh Sinhal, Advocate Mr. Lokesh for respondent No.1. for respondent No.1. Mr. Vaibhav Sharma, AAG, Haryana. Mr. Vaibhav Sharma, AAG, Haryana. Mr. Vaibhav Sharma, AAG, Haryana. MANDEEP PANNU, J MANDEEP PANNU, J 1. The present Regular Second Appeal has been filed by The present Regular Second Appeal has been filed by The present Regular Second Appeal has been filed by The present Regular Second Appeal has been filed by the the the the appellants/defendants challenging: appellants/defendants challenging: (i) The judgment and decree dated 30.03.2013 passed by the The judgment and decree dated 30.03.2013 passed by The judgment and decree dated 30.03.2013 passed by learned Civil Judge (Junior Division), Faridabad, decreeing the suit of learned Civil Judge (Junior Division), Faridabad, decreeing the suit of learned Civil Judge (Junior Division), Faridabad, decreeing the suit of learned Civil Judge (Junior Division), Faridabad, decreeing the suit of
Legal Reasoning
the plaintiffs/respondents; and the plaintiffs/respondents; and The judgment and decree dated 14.05.2015 passed by the (ii) The judgment and decree dated 14.05.2015 passed by the The judgment and decree dated 14.05.2015 passed by the (ii) learned Additional District Judge, Faridabad, dismissing the appeal learned Additional District Judge, Faridabad, dismissing the appeal learned Additional District Judge, Faridabad, dismissing the appeal learned Additional District Judge, Faridabad, dismissing the appeal ial court’s decree. and upholding the trial court’s decree. and upholding the tr Brief Facts 2. The plaintiffs/respondents filed the suit with the averments that The plaintiffs/respondents filed the suit with the averments that The plaintiffs/respondents filed the suit with the averments that The plaintiffs/respondents filed the suit with the averments that Bhajan Lal, son of Shiv Charan, was the owner of the suit land described in the Bhajan Lal, son of Shiv Charan, was the owner of the suit land described in the Bhajan Lal, son of Shiv Charan, was the owner of the suit land described in the Bhajan Lal, son of Shiv Charan, was the owner of the suit land described in the headnote. He had two sons, namely Vinod Kumar (since deceased) and Raj Kumar headnote. He had two sons, namely Vinod Kumar (since deceased) and Raj Kum headnote. He had two sons, namely Vinod Kumar (since deceased) and Raj Kum headnote. He had two sons, namely Vinod Kumar (since deceased) and Raj Kum TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) -2- (defendant no. 1), and two daughters, namely Sunita and Kavita (plaintiffs). Upon (defendant no. 1), and two daughters, namely Sunita and Kavita (plaintiffs). Upon (defendant no. 1), and two daughters, namely Sunita and Kavita (plaintiffs). Upon (defendant no. 1), and two daughters, namely Sunita and Kavita (plaintiffs). Upon the death of Vinod Kumar, his estate devolved upon his widow (defendant no. 2) the death of Vinod Kumar, his estate devolved upon his widow (defendant no. 2) the death of Vinod Kumar, his estate devolved upon his widow (defendant no. 2) the death of Vinod Kumar, his estate devolved upon his widow (defendant no. 2) and daughter (defendant no. 3). Bhajan Lal died intestate on 04.02.1998 at Village and daughter (defendant no. 3). Bhajan Lal died intestate on 04.02.1998 at Village and daughter (defendant no. 3). Bhajan Lal died intestate on 04.02.1998 at Village and daughter (defendant no. 3). Bhajan Lal died intestate on 04.02.1998 at Village while his last rites were performed at Village Machhgar. The property Deeghot, while his last rites were performed at Village Machhgar. The property while his last rites were performed at Village Machhgar. The property while his last rites were performed at Village Machhgar. The property was inherited in equal shares by the plaintiffs, defendant no. 1, and Vinod Kumar. was inherited in equal shares by the plaintiffs, defendant no. 1, and Vinod Kumar. was inherited in equal shares by the plaintiffs, defendant no. 1, and Vinod Kumar. was inherited in equal shares by the plaintiffs, defendant no. 1, and Vinod Kumar. It was alleged that defendant no. 1, in conspiracy with the local Patwari, managed It was alleged that defendant no. 1, in conspiracy with the local Patwari, managed It was alleged that defendant no. 1, in conspiracy with the local Patwari, managed It was alleged that defendant no. 1, in conspiracy with the local Patwari, managed 2323 dated 27.04.1998 sanctioned in his favour and in favour to get Mutation No. 2323 dated 27.04.1998 sanctioned in his favour and in favour 2323 dated 27.04.1998 sanctioned in his favour and in favour to get Mutation No. of Vinod Kumar on the basis of an alleged Will purportedly executed by Bhajan of Vinod Kumar on the basis of an alleged Will purportedly executed by Bhajan of Vinod Kumar on the basis of an alleged Will purportedly executed by Bhajan of Vinod Kumar on the basis of an alleged Will purportedly executed by Bhajan Lal in favour of his sons. The plaintiffs came to know of the mutation only on Lal in favour of his sons. The plaintiffs came to know of the mutation only on Lal in favour of his sons. The plaintiffs came to know of the mutation only on Lal in favour of his sons. The plaintiffs came to know of the mutation only on ad been acquired by the State for 06.09.2007. Meanwhile, the suit land had been acquired by the State for ad been acquired by the State for 06.09.2007. Meanwhile, the suit land h establishing and developing the Industrial Mini Town, Faridabad. They moved an establishing and developing the Industrial Mini Town, Faridabad. They moved an establishing and developing the Industrial Mini Town, Faridabad. They moved an establishing and developing the Industrial Mini Town, Faridabad. They moved an application dated 20.07.2008 before the Land Acquisition Collector, Faridabad application dated 20.07.2008 before the Land Acquisition Collector, Faridabad application dated 20.07.2008 before the Land Acquisition Collector, Faridabad application dated 20.07.2008 before the Land Acquisition Collector, Faridabad the amount was seeking restraint on disbursement of compensation. Despite this, the amount was seeking restraint on disbursement of compensation. Despite this, seeking restraint on disbursement of compensation. Despite this, disbursed. Believing that the suit was no longer maintainable after the disbursed. Believing that the suit was no longer maintainable after the disbursed. Believing that the suit was no longer maintainable after the disbursed. Believing that the suit was no longer maintainable after the disbursement, they initially withdrew earlier proceedings but subsequently filed the disbursement, they initially withdrew earlier proceedings but subsequently filed the disbursement, they initially withdrew earlier proceedings but subsequently filed the disbursement, they initially withdrew earlier proceedings but subsequently filed the present suit seeking declaration and permanent injunction. present suit seeking declaration and permanent injunction. present suit seeking declaration and permanent injunction. The defendants contested the suit, as The defendants contest serting the genuineness of the ed the suit, asserting the genuineness of the ill, claiming the plaintiffs were married, settled in their matrimonial homes, and Will, claiming the plaintiffs were married, settled in their matrimonial homes, and ill, claiming the plaintiffs were married, settled in their matrimonial homes, and ill, claiming the plaintiffs were married, settled in their matrimonial homes, and had been given sufficient dowry. They also took preliminary objections regarding had been given sufficient dowry. They also took preliminary objections regarding had been given sufficient dowry. They also took preliminary objections regarding had been given sufficient dowry. They also took preliminary objections regarding joinder of jurisdiction under the Land Acquisition Act, limitation, and non-joinder of jurisdiction under the Land Acquisition Act, jurisdiction under the Land Acquisition Act, necessary parties. necessary parties. 3. From the pleadings of the parties, the following issues were framed by From the pleadings of the parties, the following issues were framed by From the pleadings of the parties, the following issues were framed by From the pleadings of the parties, the following issues were framed by the learned trial Court:- the learned trial Court: 1) Whether the plaintiff is entitled to decree of declaration and Whether the plaintiff is entitled to decree of declaration and Whether the plaintiff is entitled to decree of declaration and decree of permanent injunction as prayed for? OPP decree of permanent injunction as praye decree of permanent injunction as praye TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) -3- 2) Whether the plaintiffs are entitled to receive the compensation entitled to receive the compensation of the acquired land as prayed for? OPP of the acquired land as prayed for? OPP of the acquired land as prayed for? OPP 3) Whether the plaintiff is entitled to decree of mandatory Whether the plaintiff is entitled to decree of mandatory Whether the plaintiff is entitled to decree of mandatory injunction as prayed for? OPP injunction as prayed for? OPP 4) Whether the suit of the plaintiff is not maintainable in the Whether the suit of the plaintiff is not maintainable in the present form? OPD present form? OPD 5) Whether the plaintiff has no cause of action or locus standi to Whether the plaintiff has no cause of action or locus standi to Whether the plaintiff has no cause of action or locus standi to file the present suit? OPD file the present suit? OPD 6) Whether the plaintiff has concealed the true and material facts Whether the plaintiff has concealed the true and material facts Whether the plaintiff has concealed the true and material facts from the Court? OPD from the Court? OPD 7) Relief. 4. their evidence. Both the parties lead their evidence. Both Findings Of The Lower Courts Lower Courts :- 5. the suit of the plaintiff vide judgment and Learned trial Court decreed the suit of the plaintiff vide judgment and the suit of the plaintiff vide judgment and Learned trial Court decree dated 30 30.03.2013 by observing that the W . It Will is not proved on the record. It is further observed by the learned trial Court that as per is further observed by the learned trial Court the plaintiff that as per Order 23 CPC, the plaintiff is not precluded from bringing a fresh suit if the earlier suit was withdrawn not precluded from bringing a fresh suit if the earlier suit was withdrawn for uit No. 725 was withdrawn by the plaintiff as some formal defect. The earlier Suit No. 725 was withdrawn by the plaintiff as uit No. 725 was withdrawn by the plaintiff as some formal defect. The earlier S defendants No. 4 and 5 were not part No. 4 and 5 were not parties to that suit. Thus, the said suit was having to that suit. Thus, the said suit was having joining of necessary parties. Thus, formal permission to file formal defect of non-joining of necessary parties. Thus, formal permission to file joining of necessary parties. Thus, formal permission to file formal defect of non fresh suit was not required. fresh suit was not required. 6. judgment and decree dated Feeling aggrieved by the above said judgment and decree dated Feeling aggrieved by the above said Feeling aggrieved by the above said 30.03.2013 passed by the learned trial Court, defendants No.1 to 3 filed 30.03.2013 passed by the an appeal defendants No.1 to 3 filed an appeal dismissed was filed before the learned lower Appellate Court. The said appeal was dismissed was filed before the learned lower Appellate Court was filed before the learned lower Appellate Court by the lower Appellate Court with the observations that by the lower Appellate Court plea of secondary evidence with the observations that plea of secondary evidence cannot be accepted because ot be accepted because by relying a simple entry is not sufficient to simple DDR entry is not sufficient to TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) -4- prove loss. Regarding application . Regarding application of Order 23 learned lower rder 23 Rule 2 CPC, learned lower that previous suit was not decided on merits. Therefore, Appellate Court observed that previous suit was not decided on merits. Therefore, that previous suit was not decided on merits. Therefore, Appellate Court observed agreeing with the findings of the learned trial court the judgment an agreeing with the fin d decree passed ings of the learned trial court the judgment and decree passed by the learned trial Court, was affirmed. by the learned trial Court Submissions Made By Learned Counsel For The Parties Submissions Made By Learned Counsel For The Parties Submissions Made By Learned Counsel For The Parties 7.
Legal Reasoning
he jurisdiction of the Learned counsel for the appellants argued that the jurisdiction of the Learned counsel for the appellants argued that t Learned counsel for the appellants argued that t and 6 of the Civil Court was barred in view of the notifications under Sections 4 and 6 of the Civil Court was barred in view of the notifications under Sections 4 Civil Court was barred in view of the notifications under Sections 4 Land Acquisition Act, and any challenge ought to have been made under Section Land Acquisition Act, and any challenge ought to have been made under Section Land Acquisition Act, and any challenge ought to have been made under Section Land Acquisition Act, and any challenge ought to have been made under Section 30 before the Land Acquisition Collector. He further contended that t 30 before the Land Acquisition Collector. he suit was He further contended that the suit was filed after 11 years from sanction of mutation, and therefore hopelessly barred by filed after 11 years from sanction of mutation, and therefore hopelessly barred by filed after 11 years from sanction of mutation, and therefore hopelessly barred by filed after 11 years from sanction of mutation, and therefore hopelessly barred by limitation. It is further argued that t he Lower Courts erred in rejecting their It is further argued that the Lower Courts erred in rejecting their he Lower Courts erred in rejecting their application for leading secondary evidence of the Will, which was allegedly lost, application for leading secondary evidence of the Will, which was allegedly lost, application for leading secondary evidence of the Will, which was allegedly lost, application for leading secondary evidence of the Will, which was allegedly lost, he plaintiffs/respondents failed to discharge ignoring the DDR entry (Ex. D1) and the plaintiffs/respondents failed to discharge he plaintiffs/respondents failed to discharge ignoring the DDR entry (Ex. D1) It is further argued that of proving the Will to be forged or fabricated. It is further argued that of proving the Will to be forged or fabricated. their burden of proving the Will to be forged or fabricated. the impugned judgments and decrees passed by both the courts below are perverse the impugned judgments and decrees passed by both the courts below are perverse the impugned judgments and decrees passed by both the courts below are perverse the impugned judgments and decrees passed by both the courts below are perverse to the evidence adduced by the parties and hence liable to be set aside. It is to the evidence adduced by the parties and hence liable to be set aside. It is to the evidence adduced by the parties and hence liable to be set aside. It is to the evidence adduced by the parties and hence liable to be set aside. It is intiff had earlier filed a suit against the appellants/defendants contended that the plaintiff had earlier filed a suit against the appellants/defendants intiff had earlier filed a suit against the appellants/defendants contended that the pla which was withdrawn without obtaining liberty to file a fresh suit on the same which was withdrawn without obtaining liberty to file a fresh suit on the same which was withdrawn without obtaining liberty to file a fresh suit on the same which was withdrawn without obtaining liberty to file a fresh suit on the same cause of action. Accordingly, the present suit is barred by the principle of res cause of action. Accordingly, the present suit is barred by the principle of res cause of action. Accordingly, the present suit is barred by the principle of res cause of action. Accordingly, the present suit is barred by the principle of res le 1(4) of the CPC, udicata and under Order 23 Rule 1(4) of the CPC, judicata and under Order 23 Ru 8. , on the other hand, Learned counsel for the respondent No.1/plaintiffs, on the other hand, Learned counsel for the respondent Learned counsel for the respondent he concurrent findings of fact recorded by both the Courts below are argued that the concurrent findings of fact recorded by both the Courts below are he concurrent findings of fact recorded by both the Courts below are he concurrent findings of fact recorded by both the Courts below are based on proper appreciation of evidence. He further argued that t based on proper appreciation of evidence. He further argued that the Will relie he Will relied upon by the appellants/defendants was never produced in original, and secondary upon by the appellants/defendants was never produced in original, and secondary upon by the appellants/defendants was never produced in original, and secondary upon by the appellants/defendants was never produced in original, and secondary evidence was rightly rejected as the requirements of Section 65 of the Indian evidence was rightly rejected as the requirements of Section 65 of the Indian evidence was rightly rejected as the requirements of Section 65 of the Indian evidence was rightly rejected as the requirements of Section 65 of the Indian Evidence Act were not fulfilled. Further, it is contended that the Evidence Act were not fulfilled. plea of bar of Further, it is contended that the plea of bar of TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) -5- jurisdiction under the Land Acquisition Act was neither raised in the written nder the Land Acquisition Act was neither raised in the written nder the Land Acquisition Act was neither raised in the written nder the Land Acquisition Act was neither raised in the written statement effectively nor substantiated by any legal provision applicable to the statement effectively nor substantiated by any legal provision applicable to the statement effectively nor substantiated by any legal provision applicable to the statement effectively nor substantiated by any legal provision applicable to the nature of the relief claimed. He has further submitted that nature of the relief claimed. issue was He has further submitted that no specific issue was to whether the present suit is barred by res judicata or to whether the present suit is barred by res judicata framed by the trial Court as to whether the present suit is barred by res judicata framed by the trial C . Even otherwise, as disclosed in para No. 8 of the under Order 23 Rule 1 CPC. Even otherwise, as disclosed in para No. 8 of the . Even otherwise, as disclosed in para No. 8 of the under Order 23 Rule 1 CPC plaint, the earlier suit was withdrawn without being decided on merits. Therefore, plaint, the earlier suit was withdrawn without being decided on merits. Therefore, plaint, the earlier suit was withdrawn without being decided on merits. Therefore, plaint, the earlier suit was withdrawn without being decided on merits. Therefore, the bar of res judicata has no application in the present case the bar of res judicata has no applicat . Due to formal defect ion in the present case. Due to formal defect joining of necessary parties i.e defendants No. 4 and 5, the earlier suit was of non-joining of necessary parties i.e defendants No. 4 and 5, the earlier suit was joining of necessary parties i.e defendants No. 4 and 5, the earlier suit was joining of necessary parties i.e defendants No. 4 and 5, the earlier suit was withdrawn. Findings 9. s that suit is So far as contention of learned counsel for the appellants that suit is So far as contention of learned counsel for the appellant So far as contention of learned counsel for the appellant barred under Order 23 Rule 1 CPC is concerned, i barred under Order 23 Rule t is pertinent to note that the 1 CPC is concerned, it is pertinent to note that the earlier suit filed by the respondents/plaintiffs had been withdrawn without seeking earlier suit filed by the respondents/plaintiffs had been withdrawn without seeking earlier suit filed by the respondents/plaintiffs had been withdrawn without seeking earlier suit filed by the respondents/plaintiffs had been withdrawn without seeking permission of the Court under Order 23 Rule 1(3) CPC to institute a fresh suit on permission of the Court under Order 23 Rule 1(3) CPC to institute a fresh suit on permission of the Court under Order 23 Rule 1(3) CPC to institute a fresh suit on permission of the Court under Order 23 Rule 1(3) CPC to institute a fresh suit on of such withdrawal, in the absence of liberty, the same cause of action. The effect of such withdrawal, in the absence of liberty, of such withdrawal, in the absence of liberty, the same cause of action. The effect agitating the is that the respondents/plaintiffs are ordinarily precluded from re-agitating the is that the respondents/plaintiffs are ordinarily precluded from re is that the respondents/plaintiffs are ordinarily precluded from re same subject matter in a subsequent suit. However, in the present case, both the same subject matter in a subsequent suit. However, in the present case, both the same subject matter in a subsequent suit. However, in the present case, both the same subject matter in a subsequent suit. However, in the present case, both the said withdrawal was not an Courts below have concurrently observed that the said withdrawal was not an Courts below have concurrently observed that Courts below have concurrently observed that adjudication on merits, and the plaint had, in fact, disclosed the earlier litigation adjudication on merits, and the plaint had, in fact, disclosed the earlier litigation adjudication on merits, and the plaint had, in fact, disclosed the earlier litigation adjudication on merits, and the plaint had, in fact, disclosed the earlier litigation was withdrawn by the plaintiff as defendants No. 4 and 5 were not parties to that was withdrawn by the plaintiff as defendants No. 4 and 5 were not parties to that was withdrawn by the plaintiff as defendants No. 4 and 5 were not parties to that was withdrawn by the plaintiff as defendants No. 4 and 5 were not parties to that held inapplicable in the . Therefore, the bar under Order 23 Rule 1(4) CPC was held inapplicable in the . Therefore, the bar under Order 23 Rule 1(4) CPC was suit. Therefore, the bar under Order 23 Rule 1(4) CPC was peculiar facts of the present case. This finding, being one of fact and appreciation peculiar facts of the present case. This finding, being one of fact and appreciation peculiar facts of the present case. This finding, being one of fact and appreciation peculiar facts of the present case. This finding, being one of fact and appreciation of evidence, warrants no interference in the present second appeal. of evidence, warrants no interference in the present second appeal. of evidence, warrants no interference in the present second appeal. 10. Shri Rai Singh Vs. Dr. Hemo Prabha This Court in the case of Shri Rai Singh Vs. Dr. Hemo Prabha Shri Rai Singh Vs. Dr. Hemo Prabha This Court in the case of Saikia and Others [2011 (38) R.C.R (Civil) 70] Others [2011 (38) R.C.R (Civil) 70], has held as under: , has held as under:- TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) -6- “11. So far as withdrawal of second suit, which was filed for 11. So far as withdrawal of second suit, which was filed for So far as withdrawal of second suit, which was filed for declaration only without claiming relief of possession is concerned, a declaration only without claiming relief of possession is concerned, a declaration only without claiming relief of possession is concerned, a declaration only without claiming relief of possession is concerned, a Judge bare perusal of aforementioned order passed by learned Civil Judge bare perusal of aforementioned order passed by learned Civil bare perusal of aforementioned order passed by learned Civil (Junior Division) shows that the suit was permitted to be dismissed as (Junior Division) shows that the suit was permitted to be dismissed as (Junior Division) shows that the suit was permitted to be dismissed as (Junior Division) shows that the suit was permitted to be dismissed as withdrawn in view of the grounds mentioned in application. In the withdrawn in view of the grounds mentioned in application. In the withdrawn in view of the grounds mentioned in application. In the withdrawn in view of the grounds mentioned in application. In the application, as reproduced above, ground was taken by respondent- application, as reproduced above, ground was taken by respondent application, as reproduced above, ground was taken by respondent application, as reproduced above, ground was taken by respondent suit for declaration and plaintiff to withdraw the suit for filing fresh suit for declaration and plaintiff to withdraw the suit for filing fresh plaintiff to withdraw the suit for filing fresh injunction. There was formal defect in the said suit, as suit for mere injunction. There was formal defect in the said suit, as suit for mere injunction. There was formal defect in the said suit, as suit for mere injunction. There was formal defect in the said suit, as suit for mere declaration is not maintainable without claiming relief for possession. declaration is not maintainable without claiming relief for possession. declaration is not maintainable without claiming relief for possession. declaration is not maintainable without claiming relief for possession. plaintiff was dispossessed by In this case, admittedly, respondent-plaintiff was dispossessed by In this case, admittedly, respondent In this case, admittedly, respondent en before filing of the first suit. Hence, the suit for present petitioner even before filing of the first suit. Hence, the suit for en before filing of the first suit. Hence, the suit for present petitioner ev declaration was withdrawn and thereafter the present suit was filed declaration was withdrawn and thereafter the present suit was filed declaration was withdrawn and thereafter the present suit was filed declaration was withdrawn and thereafter the present suit was filed for declaration with a relief for possession. for declaration with a relief for possession. for declaration with a relief for possession. 12. 12. In view of these facts, the only inference can be drawn is that In view of these facts, the only inference can be drawn is that In view of these facts, the only inference can be drawn is that hdraw the suit for mere declaration vide order dated permission to withdraw the suit for mere declaration vide order dated hdraw the suit for mere declaration vide order dated permission to wit 4.10.2001 was deemed to be with liberty to file a fresh suit as there 4.10.2001 was deemed to be with liberty to file a fresh suit as there 4.10.2001 was deemed to be with liberty to file a fresh suit as there 4.10.2001 was deemed to be with liberty to file a fresh suit as there was formal defect in the earlier suit. Hence, there is no force in the was formal defect in the earlier suit. Hence, there is no force in the was formal defect in the earlier suit. Hence, there is no force in the was formal defect in the earlier suit. Hence, there is no force in the rred argument of learned counsel for the petitioner that suit is barred argument of learned counsel for the petitioner that suit is ba argument of learned counsel for the petitioner that suit is ba (4) of the Code or under Order 2, (4) of the Code or under Order either under Order 23, Rule 1 (4) of the Code or under Order either under Order of the Code. On the point reliance is placed upon a judgment Rule 2 of the Code. On the point reliance is placed upon a judgment of the Code. On the point reliance is placed upon a judgment Rule Lal Singh v. Ajit rendered by a coordinate Bench of this Court in Lal Singh v. Ajit rendered by a coordinate Bench of this Court in rendered by a coordinate Bench of this Court in , wherein under similar circumstances Singh 2008(3) RCR (Civil) 650, wherein under similar circumstances , wherein under similar circumstances Singh 2008(3) RCR (Civil) 650 on to withdraw is deemed to be with it was observed that permission to withdraw is deemed to be with on to withdraw is deemed to be with it was observed that permissi liberty to file a fresh suit as the Court would not permit withdrawal liberty to file a fresh suit as the Court would not permit withdrawal liberty to file a fresh suit as the Court would not permit withdrawal liberty to file a fresh suit as the Court would not permit withdrawal without permission to file fresh suit. In the present case as well, Court without permission to file fresh suit. In the present case as well, Court without permission to file fresh suit. In the present case as well, Court without permission to file fresh suit. In the present case as well, Court has not passed any specific order regarding assertion of respondent- has not passed any specific order regarding assertion of respondent has not passed any specific order regarding assertion of respondent has not passed any specific order regarding assertion of respondent TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) -7- f that she intends to file fresh suit for declaration and recovery plaintiff that she intends to file fresh suit for declaration and recovery f that she intends to file fresh suit for declaration and recovery plaintif of possession. Moreover, Court could not have refused permission to of possession. Moreover, Court could not have refused permission to of possession. Moreover, Court could not have refused permission to of possession. Moreover, Court could not have refused permission to file fresh suit for declaration and possession regarding the subject file fresh suit for declaration and possession regarding the subject file fresh suit for declaration and possession regarding the subject file fresh suit for declaration and possession regarding the subject iew of peculiar facts matter in dispute as earlier suit was defective in view of peculiar facts matter in dispute as earlier suit was defective in v matter in dispute as earlier suit was defective in v and circumstances of the case.” and circumstances of the case. 11. said case law is fully applicable to the facts and The above-said case law is fully applicable to the facts and said case law is fully applicable to the facts and The above has not circumstances of the present case. In the present case also, the Court has not circumstances of the present case. In the present case also, the circumstances of the present case. In the present case also, the passed any order regarding intention of the plaintiff to file fresh suit which passed any order regarding intention of the plaintiff to file fresh suit which passed any order regarding intention of the plaintiff to file fresh suit which passed any order regarding intention of the plaintiff to file fresh suit which impliedly gives permission to file fresh suit as the former suit was dismissed on impliedly gives permission to file fresh suit as the former suit was dismissed on impliedly gives permission to file fresh suit as the former suit was dismissed on impliedly gives permission to file fresh suit as the former suit was dismissed on formal defect. 12. Regarding, jurisdiction under the Land Acquisition Act Regarding, j l of urisdiction under the Land Acquisition Act, a perusal of he relief sought was primarily declaratory, concerning the plaint would reveal that the relief sought was primarily declaratory, concerning he relief sought was primarily declaratory, concerning the plaint would reveal that t the validity of the will and mutation, and not the quantum or apportionment of the validity of the will and mutation, and not the quantum or apportionment of the validity of the will and mutation, and not the quantum or apportionment of the validity of the will and mutation, and not the quantum or apportionment of compensation under Section 30 of the Land Acquisition Act. Therefore, the Civil compensation under Section 30 of the Land Acquisition Act. Therefore, the Civil compensation under Section 30 of the Land Acquisition Act. Therefore, the Civil compensation under Section 30 of the Land Acquisition Act. Therefore, the Civil jurisdiction was not barred. Court’s jurisdiction was not barred. 13. Now coming to the contention of learned counsel for the appellants Now coming to the contention of learned counsel for the appellants Now coming to the contention of learned counsel for the appellants Now coming to the contention of learned counsel for the appellants regarding loss of Will and oss of Will and secondary evidence not allowed by the learned trial vidence not allowed by the learned trial Court. A perusal of the record shows that the appellants/defenda Court. A perusal of the record shows that the ted that appellants/defendants admitted that ill was never produced before the revenue authorities at the time of the original Will was never produced before the revenue authorities at the time of ill was never produced before the revenue authorities at the time of ill was never produced before the revenue authorities at the time of sanctioning the mutation. The DDR entry (Ex. D1) was made during the pendency sanctioning the mutation. The DDR entry (Ex. D1) was made during the pendency sanctioning the mutation. The DDR entry (Ex. D1) was made during the pendency sanctioning the mutation. The DDR entry (Ex. D1) was made during the pendency serving document. An unregistered will, of the present suit and appears to be a self-serving document. An unregistered will, serving document. An unregistered will, of the present suit and appears to be a self hose original is not forthcoming, cannot be accepted as genuine unless its whose original is not forthcoming, cannot be accepted as genuine unless its hose original is not forthcoming, cannot be accepted as genuine unless its hose original is not forthcoming, cannot be accepted as genuine unless its execution is proved in accordance with Section 63 of the Indian Succession Act execution is proved in accordance with Section 63 of the Indian Succession Act execution is proved in accordance with Section 63 of the Indian Succession Act execution is proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. The lower courts rightly rejected the and Section 68 of the Evidence Act. The lower courts rightly rejected the and Section 68 of the Evidence Act. The lower courts rightly rejected the and Section 68 of the Evidence Act. The lower courts rightly rejected the application for secondary evidence. application for secondary ev TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document RSA-4887-2015 2015 (O&M) Final Conclusion -8- 14. this Court In light of the foregoing discussion on the issues raised, this Court In light of the foregoing discussion on the issues raised In light of the foregoing discussion on the issues raised finds no illegality, perversity, or material irregularity in the concurrent findings finds no illegality, perversity, or material irregularity in the concurrent findings finds no illegality, perversity, or material irregularity in the concurrent findings finds no illegality, perversity, or material irregularity in the concurrent findings trial court and recorded by the Courts below. The findings of fact recorded by the trial court and recorded by the Courts below. The findings of fact recorded by the recorded by the Courts below. The findings of fact recorded by the affirmed by the First Appellate Court are based on proper appreciation of evidence, affirmed by the First Appellate Court are based on proper appreciation of evidence, affirmed by the First Appellate Court are based on proper appreciation of evidence, affirmed by the First Appellate Court are based on proper appreciation of evidence, supported by cogent reasons, and do not suffer from any infirmity warranting supported by cogent reasons, and do not suffer from any infirmity warranting supported by cogent reasons, and do not suffer from any infirmity warranting supported by cogent reasons, and do not suffer from any infirmity warranting interference by this Court in exercise of powers under Section 100 CPC. The interference by this Court in exercise of powers under Section 100 CPC. The interference by this Court in exercise of powers under Section 100 CPC. The interference by this Court in exercise of powers under Section 100 CPC. The sent Regular Second Appeal is, therefore, dismissed being devoid of merit. present Regular Second Appeal is, therefore, dismissed being devoid of merit. sent Regular Second Appeal is, therefore, dismissed being devoid of merit. 15.
Decision
Pending application(s), if any, also stand disposed off. Pending application(s), if any, also stand disposed off. Pending application(s), if any, also stand disposed off. August 18, 2025 2025 tripti (MANDEEP PANNU) JUDGE Whether speaking/non-speaking : Speaking speaking : Speaking Whether speaking/non : Yes/No : Yes/No Whether reportable Whether reportable TRIPTI SAINI 2025.08.20 10:56 I attest to the accuracy and integrity of this document