Allowed

Kamla Devi etc. v. Om Parkash etc.

Punjab & Haryana HC3 Jul 2009RSA/3431/1985

Case brief

AI extract

What is this about?

Appeal against lower courts decreeing a suit for mandatory injunction to remove construction. Court held issue governed by res-judicata as all parties claim under same title; previous judgment regarding land status persuasive despite independent plea. Set aside decrees and dismissed suit.

What did the court decide?

Judgments and decrees of courts below set aside; suit filed by respondent no.1 dismissed; questions of law held in favour of appellants.

Kamla Devi etc. Vs Om Parkash etc. — Property and Title | Punjab & Haryana HC (2009)

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RSA No.3431 of 1985

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-1-

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

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RSA No.3431 of 1985 Date of Decision: 03.07.2009

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Kamla Devi and another

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...Appellants

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VERSUS

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Om Parkash and another

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...Respondents

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CORAM: HON'BLE MR.JUSTICE AJAY TEWARI

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Present : Mr. M. L. Sarin, Sr. Advocate with Mr. Jaspal Singh, Advocate for the appellant.

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None for the respondents.

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AJAY TEWARI J.

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This appeal has been filed against concurrent judgments of the courts below decreeing the suit of respondent no.1 for mandatory injunction directing the appellant to remove construction shown vide letters ABCD in the plan annexed to the plaint. It also deserves to be mentioned here that the matter had originally been argued on 01.07.2009 but was adjourned due to absence of learned counsel for the respondents who was duly informed about the same by the insertion of a note in the daily cause list. However, none has appeared today also on behalf of the respondents.

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It is not disputed that earlier the appellant had filed a suit against the Municipal Committee (respondent No.2) herein challenging a notice issued to her to demolish this very construction and for a permanent

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RSA No.3431 of 1985 -2-

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injunction restraining the Municipal Committee from taking any steps to demolish the said construction. That suit was decreed vide judgment and order dated 19.11.1979 which has admittedly become final.

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The instant suit was filed by respondent No.1 on the ground that as a resident of the locality he was affected by this encroachment of the appellant and further alleging that the earlier suit filed by her had been decreed only because of the collusion of the officials of the Municipal Committee who had intentionally not placed on record a sanctioned plan of the new Mahavir Colony. The suit was decreed and appeal against that was dismissed and that is how the matter is before this court.

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Learned Senior Advocate appearing on behalf of the appellants has framed the following substantial question of law:-

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“Whether the findings of both the Courts below are vitiated by the principle and doctrine of res-judicata, as the status of suit property in the present appeal has been decided by an earlier decree of the appellate court?”

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Learned counsel has urged that respondent No.1 is claiming under the same title as was being sought by the Municipal Committee in the previous suit viz., the fact the land on which the disputed construction has been made is a street. He has further argued that even if it is held that respondent No.1 is not claiming under the Municipal Committee in the present suit and thus the earlier decision is not res-judicata (as held by the courts below) yet the said judgment is extremely persuasive.

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Developing further learned counsel has argued that if the site plan had been exhibited in this case and it had incontrovertibly established

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RSA No.3431 of 1985

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that land on which disputed construction is made is a street, it would have been a different thing, but even though this was a specific plea advanced, no such plan was produced even in the present suit.

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In my opinion, this appeal deserves to succeed on both the arguments addressed by learned counsel. Though at first blush it may seem that respondent No.1 is not claiming under the respondent No.2 in the present suit and is claiming an independent right, yet the fact remains that both the respondents are claiming under the same title as was being sought by the Municipal Committee in the previous suit viz., the fact that the land on which the disputed construction has been made is a street. Thus in my opinion, the doctrine of res judicata would definitely be attracted.

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Apart from that even on merit I find that respondent No.1 as had specifically taken the plea that the all-important site plan could not be produced in the previous litigation only because of the collusion of the officials of the Municipal Committee. However, the said documentary evidence which may have clinched the issue has not been produced even in this litigation. Thus even if it is held that present suit is not hit by the doctrine of res judicata yet I find no reason for the lower courts to have taken a diametrically different view than what was taken in the earlier decision. No reason has been advanced by the courts below to assail the findings in the earlier litigation.

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Consequently, this appeal is allowed on both the grounds referred to above. The judgments and decrees of the courts below are set aside and the suit filed by respondent No.1 is dismissed and the questions of law raised held in favour of the appellants.

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RSA No.3431 of 1985

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No costs.

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As the main case since has been disposed of therefore all the pending civil miscellaneous applications in the case also stand disposed of.

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( AJAY TEWARI ) July 03, 2009 JUDGE ashish

Kamla Devi etc. v. Om Parkash etc.

Case brief

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Kamla Devi etc. v. Om Parkash etc.

Case brief

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