Dismissed

Kulbir Singh v. Narinder Singh Gill & Ors.

Punjab & Haryana HC2 Sept 2009RSA/2512/2008

Case brief

AI extract

What is this about?

The High Court of Punjab and Haryana dismissed an appeal against a decree for recovery of possession. The court held that a prior suit for injunction without liberty to file a fresh suit did not bar the current suit for possession as the cause of action was distinct. Nominal mesne profits were awarded due to prolonged possession by defendants.

What did the court decide?

Nominal mesne profits awarded at Rs. 1,000 per month from the date of filing the suit.

Kulbir Singh Vs Narinder Singh Gill & Ors. — Property and Title | Punjab & Haryana HC (2009)

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R.S.A No. 2512 of 2008(O&M)

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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C.M No.9731-C of 2009 and R.S.A No. 2512 of 2008 Date of decision : September 02, 2009

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Kulbir Singh,

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...... Appellant (s)

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Narinder Singh and others,

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...... Respondent(s)

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CORAM : HON'BLE MR.JUSTICE AJAY TEWARI

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Present : Mr. Ashok Aggarwal, Sr. Advocate with Mr. Mukul Aggarwal, Advocate for the appellant.

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Mr. Sumeet Mahajan, Sr. Advocate with Mr. Sham Lal Bhalla, Advocate for respondent No.1.

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1. Whether Reporters of Local Newspapers may be allowed to see the judgment ?

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2. To be referred to the Reporters or not ?

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3. Whether the judgment should be reported in the Digest ?

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AJAY TEWARI, J

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C.M.No.9731-C of 2009

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For the reasons stated, C.M is allowed and the service of respondents No.2 to 4 is dispensed with for the purpose of motion hearing. R.S.A No.2512 of 2008

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This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the plaintiff-respondent No.1 for possession of three properties numbering 4, 5 and 6, even while dismissing

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R.S.A No. 2512 of 2008(O&M)

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his claim for mesne damages. For facility of reference, parties would be referred to by their original title.

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The undisputed facts are that the plaintiff (respondent No.1) had purchased the aforesaid properties No.4 and 5, vide sale deed dated 7.2.1969 from his sister and adjoining property No.6, vide sale deed dated 28.5.1969. He constructed a house on property No.5 and, since he was an NRI, living in England, the said house was used by his mother for her residence. During the last few days of her life, the defendants started residing with her. The mother of the plaintiff died in September 1988. Thereafter, since the defendants refused to vacate the property, the instant suit was filed as far back as 4.3.1989 for possession. The plea taken by the defendants was that the suit was barred by Order 23 Rule 1 read with Order 2 Rule 2 of the CPC. The second plea taken was that in fact properties No.4 and 5 though purchased in the name of the plaintiff, were purchased out of joint family funds.

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As mentioned above, the suit having been decreed, one of the defendants has challenged the same and raised the following questions :-

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“ (i) Whether the instant suit is barred by Order 23 Rule 1 CPC, especially in view of the conceded fact that previous suit (Ex.DW1/1) was withdrawn by the plaintiff-respondent No.1 without any liberty from the Court to file a fresh suit ?

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(ii) Whether the instant suit of the plaintiff-respondent No.1 is also barred by Order 2 Rule 2 CPC ? (iii) Whether the findings of the learned Courts below holding the plaintiff to be the owner of the suit property,

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R.S.A No. 2512 of 2008(O&M)

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can be sustained in the eyes of law, especially when the plaintiff himself doubts the factum of perfect and valid title of his vendor ?

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(iv) Whether the entire evidence on the record has been misread and misconstrued by the learned Courts below? (v) Whether the findings of the learned Courts below on issue No.3A are inconsistent and contrary to the evidence available on the record ?

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(vi) Whether proper issues have been framed by the learned Courts below for the effective disposal of the present controversy ?

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(vii) Whether the suit has been properly valued for the purpose of court fee and jurisdiction ?”

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Learned senior counsel appearing on behalf of the defendant

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has argued primarily questions No. (i) and (ii). It is his contention that prior to the filing of the present suit, the plaintiff had filed a suit for permanent injunction restraining defendant No.1 from interfering in his alleged possession over properties No.4 and 6. However, the plaintiff withdrew that suit without permission to file a fresh one on the same cause of action. Further developing his argument, learned counsel has stated that while appearing as a witness in the present suit in his examination-in-chief, the plaintiff admitted that the defendants had taken illegal possession of the property in dispute (including properties No.4 and 6). He has further submitted that in the cross examination also, the plaintiff had categorically admitted at two places in the following terms :-

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“.......To my knowledge Kuldip Singh entered into

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R.S.A No. 2512 of 2008(O&M)

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possession of property in dispute in 1987 when I came to India. I came to India in May 1987........ When I came to India in 1988 as mentioned above Kuldip Singh was living in the property in dispute......”

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Learned counsel further drew my attention to yet another sentence of the cross-examination wherein the plaintiff admitted that he had earlier filed a suit for injunction against defendant No.1 which had been withdrawn because of compromise. Based on these facts, the argument of learned counsel is that the plaintiff had admitted the possession of the defendants over the property in dispute at the time when he had filed the earlier suit and, thus, having not sought the relief of possession in that earlier suit, this suit would be barred qua his claim for possession over properties No.4 and 6. Learned counsel has relied upon a decision of the Hon'ble Supreme Court in Kunjan Nair Sivaraman Nair v. Narayanan Nair and others, (2004)3 SCC 277. In the said case, a suit for possession (like the present one) was sought to be repelled on the ground that the plaintiff therein had earlier filed a suit `seeking a decree for declaration of right and title to the plaint schedule property and their possession. Though their title was upheld the prayer for injunction was rejected as possession was not found. Appeal against the judgment in question did not bring any relief. Subsequently, a suit to which the present dispute related was filed seeking recovery of possession with mesne profits'. Learned counsel has drawn my attention to para 8 of the said judgment, wherein the Hon'ble Supreme Court has held as follows :-

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“ 8. A mere look at the provisions shows that once the plaintiff comes to a court of law for getting any redress

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R.S.A No. 2512 of 2008(O&M)

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basing his case on an existing cause of action, he must include in his suit the whole claim pertaining to that cause of action. But if he gives up a part of the claim based on the said cause of action or omits to sue in connection with the same, then he cannot subsequently resurrect the said claim based on the same cause of action. So far as sub-rule (3) is concerned, before the second suit of the plaintiff can be held to be barred by the same, it must be shown that the second suit is based on the same cause of action on which the earlier suit was based and if the cause of action is the same in both the suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available to it on the basis of that cause of action, the reliefs which it had failed to press into service in that suit cannot be subsequently prayed for except with the leave of the court. It must, therefore, be shown by the defendants for supporting their plea of bar of Order 2 Rule 2 sub-rule (3) that the second suit of the plaintiff filed is based on the same cause of action on which its earlier suit was based and that because it had not prayed for any relief and it had not obtained leave of the court in that connection, it cannot sue for that relief in the present second suit......”

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Learned counsel for the plaintiff-respondent No.1 has argued that the statements in evidence to which pointed attention has been drawn would not give rise to the irresistible conclusion that the plaintiff had

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R.S.A No. 2512 of 2008(O&M)

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admitted the possession of the defendants over properties No.4 and 6 at the time when he filed the original suit. The first statement only states that at the time when the statement was made, the defendants were in possession. The statements in the cross-examination are only to the effect that the defendants were staying in the property in dispute. There was no statement that the defendants had taken illegal possession after the death of the mother of the plaintiff in September 1988.

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I find this to be a plausible explanation and, thus, hold that there was no admission by the plaintiff that the defendants were in exclusive possession at the time when the earlier suit was filed. Apart from that, in Kunjan Nair Sivaraman Nair's case (supra), after discussing the provisions of Order 2 Rule 2 of the CPC, the earlier judgments of the Hon'ble Supreme Court, the interplay between the doctrine of res judicata and Order 2 Rule 2 of the CPC, and discussing the effect of the expression `cause of action' in this context, the Hon'ble Supreme Court held as follows :-

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“ 19. In Inacio Martins v. Narayan Hari Naik an almost identical question arose. In that case, the plaintiff had prayed for protection of his possession by a prohibitory injunction. That prayer was refused. Subsequent suit was for recovery of possession. This Court held that in the former suit the only relief that the Court could have granted was in regard to the declaration sought for which the Court could not have granted in view of the provisions of the Specific Relief Act. The cause of action for the first suit was based on the apprehension about likely forcible dispossession. The cause of action

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R.S.A No. 2512 of 2008(O&M)

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of the suit was not on the premise that he had, in fact, been illegally and forcefully dispossessed and needed the courts' assistance for restoration of possession. In that background this Court held that subsequent suit was based on a distinct cause of action not found in or formed the subject-matter of the former suit. The ratio of the decision has full application to the facts of the present case.

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In Deva Ram case it was held that where the previous suit was for recovery of loan which was dismissed on the ground that the document on the basis of which the suit was filed was not a sale deed but agreement for sale, subsequent suit for recovery of possession on the basis of title was not hit by Order 2 Rule 2 as the cause of action in the two suits were not identical or one and the same.

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The Courts below were, therefore, justified in holding that Order 2 Rule 2 of the Code had no application to the facts of the case. Consequently, the decree passed in favour of the plaintiffs for recovery of possession shall stand affirmed and the appeal to that extent shall stand dismissed.”

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Thus, it would be seen that while in paragraph 8 of Kunjan Nair Sivaraman Nair's case (supra), the Hon'ble Supreme Court defined the jurisprudential parameters of the policy of Order 2 Rule 2 of the CPC, in actual implementation, in paragraphs 19, 20 and 21 (supra), the Hon'ble

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R.S.A No. 2512 of 2008(O&M)

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Supreme Court rejected a plea based on Order 2 Rule 2 of the CPC in a factual situation like the present one.

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With regard to the plea in respect of properties No.4 and 5 having been purchased out of joint family funds, questions No. (iii), (iv) and (v) would cover the said plea. It would be seen that these questions are pure questions of fact. No arguments have been addressed on questions No. (vi) and (vii).

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Learned counsel for the plaintiff has argued that since the defendants have now illegally usurped the property of the plaintiff for 20 years, mesne profits should be awarded in his favour.

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It cannot be denied that the defendants have remained in possession now for more than 20 years during the pendency of these proceedings. The three properties in dispute total about 1000 sq. yards with the house where the mother of the plaintiff and the defendants were staying. Learned counsel for the plaintiff has argued that the award of mesne profits of Rs.50,000/- per year would be called for in respect of this house with its own grounds situated in Ludhiana. It has to be noticed that there is no evidence available in this regard. However, even by the conservative standards, in my opinion, it is a fit case for awarding nominal mesne profits @ Rs.1,000/- per month from the date of filing of the suit till the date of actual vacation.

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Resultantly, this appeal is dismissed with costs of Rs.25,000/-.

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As the main appeal has since been dismissed, all the pending civil miscellaneous applications, if any, also stand disposed of.

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( AJAY TEWARI ) September 02, 2009. JUDGE `kk'

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R.S.A No. 2512 of 2008(O&M) ::9::

Kulbir Singh v. Narinder Singh Gill & Ors.

Case brief

What is this about?

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Kulbir Singh v. Narinder Singh Gill & Ors.

Case brief

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