The appellant challenged orders dismissing a suit for declaration of ownership and possession of land. The High Court dismissed the appeal, holding the suit barred by res judicata and constructive res judicata due to a previous judgment regarding the same land.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 135/2017 Reserved on: 01.12.2023 Decided on :4.12.2023
Rajinder Singh and ors. Appellants
Versus
State of Himachal Pradesh …..Respondent
Coram
The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No
For the appellant: Mr. P.S. Goverdhan, Senior Advocate with Mr.Rakesh Thakur, Advocate.
For the respondents: Ms. Sharmila Patial and Mr. Navlesh Verma, Addl. AGs
Tarlok Singh Chauhan, Judge (oral)
The plaintiffs are the appellants, who, after having lost before both the learned courts below, have filed the instant appeal .
The parties shall be referred to as the “plaintiffs” and “defendant”.
2 The plaintiffs filed a suit for declaration against the defendant/State to the effect that the land comprised in Khasra Nos.366, 368, 369 and 370 measuring 37 Bighas 14 Biswas situated in Mauja Shilly, previously known as Bajuri, Pargana Takroli, Tehsil and District Solan, H.P., was owned and possessed
by the predecessor-in-interest of the plaintiffs and now being successors, are owners in possession of the suit land.
3 The plaintiffs further assailed the legal validity and sanctity of mutation No.35, dated 22.3.1917 on the premise that the alleged mutation was sanctioned and attested in favour of the State in absence of the predecessor- in-interest of the plaintiffs, and therefore, the same was wrong, illegal, void ab-initio and not binding upon the rights of the plaintiffs. It was further averred that the alleged mutation was without jurisdiction and without any authority or order of the competent authority or the Court. It was further pleaded that there was no occasion to have changed the revenue entries in favour of the State since there was no gift, transfer, relinquishment, sale or any sort of alienation of the suit land in favour of the State.
4 The plaintiffs also pleaded that they were coming in cultivating possession of the suit land since long and in alternate, claimed that they had perfected their title over the suit land by way of adverse possession.
5 The State contested the claim of the plaintiffs by way of filing written statement, wherein it raised preliminary objections with respect to maintainability, cause of action, non service of notice under section 80 CPC, and suit being barred by principle of
res judicata . On merits, the State pleaded that the State is owner of the suit land and has been coming in its ownership and possession of the property in question on the strength of the mutation No.35, dated 20.6.1917.
6 In the replication filed on behalf of the plaintiffs, the averments as contained in the plaint were reiterated after refuting those of written statement contrary to the plaint.
7 On the pleadings of the parties, the learned trial court
on 13.8.2004 framed the following issues:-
1. Whether the plaintiff is owner in possession of the suit land as alleged? OPP.
2. Whether mutation No. 35 dated 22.6.1917 is wrong, illegal, null and void? OPP. 3. Whether the entries recorded in the revenue record are wrong, illegal, null and void? OPP
4. Whether order dated 26.3.2001 passed by DFO (Wild life) is wrong, illegal, null and void? OPP
5. Whether the plaintiff is entitled for the relief of injunction? OPP
6. Whether the plaintiff has become owner of the suit land by way of adverse possession? OPP 7. Whether in the alternative the plaintiff is entitled for the relief of possession? OPP
8. Whether this suit is bad for want of notice to the defendant? OPD 9. Whether this suit is barred by the principle of res judicata? OPD 10. Whether this court has no jurisdiction to try this suit? OPD 11. Whether the plaintiff has no locus-standi to file the suit? OPD
12. Whether this suit is barred by limitation? OPD
13. Relief.
8 After recording the evidence and evaluating the same, the learned trial court vide judgment and decree, dated 17.2.2014, dismissed the suit filed by the plaintiffs and the appeal against the said judgment and decree also came to be dismissed by the learned first appellate court vide judgment and decree, dated 19.9.2016, constraining the plaintiffs to file the instant appeal.
9 On 18.8.2017, the instant appeal came to be formally admitted on the following substantial question of law:
“Whether on account of mis appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record the findings recorded by both courts below are erroneous and as such the judgment and decree impugned in the main appeal being perverse is vitiated and not legally sustainable?
10 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
11 At the outset, it needs to be observed that the Court would only go into the question of the perversity in appreciating the oral as well as documentary evidence and pleadings, in case the suit is found to be maintainable and if it is otherwise, then the court need not to go into this question at all.
12 Why I observe so is that it is not in dispute that both the learned courts below have concurrently found that mutation No. 35, dated 20.6.1917, vide which the suit land was mutated in favour of the State, was attested in presence of the general public and it is an admitted fact that the predecessors-in-interest of the plaintiffs during their life time had not challenged such mutation, and it is only after the death of of the predecessors of the plaintiffs that the plaintiffs filed the instant suit in the year 2001 after a period of about 85 years challenging such mutation in favour of the State.
13 The failure of the predecessors of the plaintiffs to challenge the impugned mutation during their life time and even after death of their predecessors by the plaintiffs and having kept mum for 85 years negates the plea of the plaintiffs that the impugned mutation is illegal, null, void.
14 Here, it also needs to be noticed that the plaintiffs have previously filed a suit regarding part of the suit land comprising Khasra No. 368 seeking similar declaration like in the instant case that they are owners in possession of the said land and the State has no right, title or interest in the same and the revenue entries qua the suit land in favour of the State are illegal, null and void.
15 This suit was dismissed by the learned trial court and thereafter first appeal preferred by the plaintiffs was also dismissed by on 15.6.1987 and then second appeal preferred by the plaintiffs was also dismissed by this Court on 24.2.1995.
16 These facts were not disputed before the learned courts below and have otherwise been admitted by the plaintiffs while examining PW1 Satya Pal, Record Keeper to prove copy of plaint Ex. P1, copy of written statement Ex. P2, copy of amended plaint Ex. P3 and copy of judgment Ex. P4 in a previously instituted suit.
17 On perusal of Ex. P1 and Ex. P3, it would be seen that the original plaintiff Krishan Lal (since deceased) had filed a suit against the State and others regarding the land comprised in Khasra No. 368 measuring 20-17 Bighas, which was part of the suit land seeking declaration that he was owner in possession of the said land and entries existing in the revenue record in favour of the State were illegal, null, void and contrary to the factual position at the spot. He had further sought injunction restraining the State from interfering in his possession over the said land.
18 In the written statement filed by the State in that suit, Ex. P2, a specific plea was taken by the State that the mutation qua the suit land had been attested in favour of the State bearing
No. 35 dated 20.6.1917 and the proprietary rights were changed in the name of the State and since then it was the State who was coming in possession of the said land as owner and the plaintiff never remained owner in possession of such land.
19 Now, in case judgment dated 22.12.1983 Ex. P4 passed by learned Senior Sub Judge, Solan in that suit is perused, it would be noticed that the suit filed by the plaintiff was dismissed and the plea of the plaintiff that the revenue entries regarding the said land existing in favour of the State were illegal, null and void; was turned down by the learned Senior Sub Judge, Solan.
20 Appeal filed by the plaintiff was also dismissed by the learned first appellate court vide judgment dated 15.6.1987 and the second appeal filed before this Court was also dismissed vide judgment dated 24.2.1995 Ex. DW6/R.
21 Now, what would be evident from the aforesaid discussions is that not only the findings regarding mutation No. 35, dated 20.6.1917 have attained finality, but also qua Khasra No. 368 measuring 20-17 Bighas to the fact that after attestation of mutation No. 35, it is the State, which is owner of the suit land. 22 Interestingly, the plaintiff, in addition to Khasra No. 368, which was directly in issue in the previously instituted suit
No. 26/1 of 1983, involved Khasra Nos. 366, 369 and 371 in the present suit and like earlier declaration, had sought declaration qua these Khasra numbers along with Khasra No. 368, and the findings in that suit as mentioned above qua Khasra No. 368 and mutation No. 35, Ext. PW6/B, have attained finality and thus the instant suit is clearly barred by res judicata.
23 As regards remaining Khasra Nos. 366, 369 and 371, the suit is also barred by doctrine of constructive res judicata as the matter can be said to be constructively in issue when it “might and ought” to have been made a ground of defence or attack in the previous suit.
24 The learned courts below have rightly held that the matter regarding Khasra Nos. 366, 369 and 371 ought to have been made a ground of defence or attack in the former suit No. 26/1 of 1983 and having failed to do so, the instant suit regarding Khasra Nos. 366, 369 and 371 is barred by doctrine of res judicata, which is based on the cardinal principal that no man should be vexed twice for the same cause of action and it is in the interest of the State that there should be an end to the litigation.
25 Since the suit filed by the plaintiff itself is not maintainable, obviously in such circumstances, there is at all no
question of there being any mis-appreciation of pleadings or misreading of the oral as well as documentary evidence available on record by the learned courts below. The substantial question of law is answered accordingly.
26 In view of aforesaid discussions, I find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any. The parties are left to bear their
own costs.
4.12.2023 (Tarlok Singh Chauhan) (pankaj) Judge
3 issues framed by the court
Whether the suit is barred by the principle of res judicata?
Whether the findings of the courts below were erroneous?
Whether the mutation was illegal and void ab-initio?
2 provisions across 2 enactments
Rajinder Singh and ors.
State of Himachal Pradesh
Tarlok Singh Chauhan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
