In a second appeal regarding a suit for permanent injunction over property dispute, the High Court found the lower courts erred in applying res judicata due to confusion over property numbers, remanding the case for fresh adjudication.
Set aside judgments of courts below; remanded case to Trial Court for fresh adjudication on issues; no order as to costs.
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 PUNJAB & HARYANA AT CHANDIGARH
RSA No. 1787 of 1989 (O&M) Date of Decision: 22.2.2012.
Mohammad Ramjan
--Appellant
Versus
Bhagu
--Respondent
CORAM:- HON'BLE MR.JUSTICE TEJINDER SINGH DHINDSA.
Present:Mr. C.B. Goel, Advocate for the appellant.
TEJINDER SINGH DHINDSA.J
The plaintiff-appellant is in second appeal before this Court.
The plaintiff-appellant instituted a suit for permanent injunction in terms of pleadings that he is the owner in possession of the suit property bearing Gher No.175 Ahata No.105 pertaining to village Umra, Tehsil Ferozepur Jhirka, Distt. Gurgaon vide registered sale deed dated 7.10.1980 having purchased the same from Hussaina for a sale consideration of Rs.2,000/-. It was pleaded that the plaintiff-appellant being owner in possession of the suit property had built a Pucca Kotha, a Chabutra and three Khors for feeding cattle. It was also pleaded that the site marked as A, B, C, D is a part and parcel of Gher No.175, Ahata No.105. Apprehending forcible dispossession at the hands of the defendant, the suit had been instituted.
The suit was contested by the defendant Bhagu denying the plaintiff-appellant to be owner of the suit property. It was stated that the defendant had earlier initiated a suit against the plaintiff-appellant pertaining to the suit property and the same had been decreed in his favour and as such the present suit was barred by the principles of res judicata.
-2-
RSA No. 1787 of 1989 (O&M)
Upon the pleadings of the parties, following issues were framed
by the Trial Court:-
The Trial Court dismissed the suit and the civil appeal preferred by the plaintiff-appellant has met the same fate vide impugned judgement dated 20.4.1989 passed by the Additional District Judge, Gurgaon.
I have heard Mr. C.B. Goel, learned counsel appearing for the plaintiff-appellant at length. None put in appearance on behalf of the respondent. I have also perused the record of the case.
In the light of the submissions made by learned counsel for the plaintiff-appellant, I find that the following substantial question arises for consideration in the present second appeal:-
“ Whether the judgements and decrees of the courts below are perverse and based on a misreading and mis-appreciation of evidence on record?”
While returning findings on issues no.1 and 2, the Trial Court
has placed reliance upon the judgement dated 7.8.1985 (Ex.D-1) in civil suit no.612 of 10.2.1983 filed by Bhagu son of Jiwan Khan Vs. Hussaina son of Mulfat and Mohammad Ramzan son of Ali Mohhamad residents of village
RSA No. 1787 of 1989 (O&M) -3-
Umra. It has been held that such judgement dated 7.8.1985 (Ex.D-1) is between the same parties i.e. the present plaintiff-appellant and defendant. The decree sheet (Ex.DX) has also been taken into account to hold that the suit land pertaining to the earlier suit is also the same. As such the findings on issues no.1 and 2 recorded collectively were in the following terms:-
“The suit property was also in question in civil suit no.612 of 10.2.1983, which is between the same parties and in which the present defendant was declared to be owner in possession by a competent court of civil jurisdiction and therefore, under such circumstances, I have no hesitation in holding that plaintiff is not owner in possession. Issues no.1 and 2 are decided accordingly.”
Issue no.5 was with respect to the suit being barred by the principles of res judicata and the findings recorded by the Trial Court were in the following terms:-
“Issue No.5
15. It is admitted case of the parties to the suit that a previous suit no.612 of 10.2.83 were decided on 7.8.1985. The copy of judgement and decree sheet are Ex.P.1 and Ex.DX respectively. The parties to the suit in the present suit and in the previous suit are the same and property in question is also same. The question in dispute in the instant case has already been decided conclusively by a civil court of competent jurisdiction and therefore, under such circumstances I am of the considered opinion that this court cannot try any suit or issue as the matter directly substantially in issues has been directly substantially in issues in a formal suit between the same parties and the matter was finally decided by a competent court of civil jurisdiction and accordingly the present suit is barred by principle of res judicata. Issue no.5 is decided accordingly.”
RSA No. 1787 of 1989 (O&M)
-4-
Such finding stands affirmed by the Lower Appellate Court. However, a perusal of the record would reveal that the judgement (Ex.D-1) and decree sheet (Ex.DX) pertaining to suit no.612 of 10.2.1983 relates to property comprised in Gher No.171 Ahata No.101, whereas the present suit had been instituted by the plaintiff-appellant praying for a relief of permanent injunction in respect of property comprised in Gher No.175 Ahata No.105. Resultantly, I find that the findings on issues no.1 and 2 of both the courts below holding the suit property pertaining to the previous suit no.612 of 10.2.1983 in terms of judgement (Ex.D-1) and decree sheet (Ex.DX) to be different from the suit property involved in the present suit. The findings as such are wholly perverse and based on a clear misreading and mis-appreciation of evidence. Consequently, even the finding on issue no.5 holding the present suit to be barred by the principles of res judicata, cannot be sustained.
For the reasons stated herein above, I answer the question of law in the affirmative and in favour of the plaintiff-appellant. It would be appropriate to remand the matter back to the Trial Court for a decision afresh. I, accordingly, set aside the judgements and decrees of both the courts below and remand the case to the Trial Court for a fresh adjudication on the issues. Parties to appear before the Trial Court on 4th of April, 2012.
The present appeal is, accordingly, disposed of but with no order as to costs.
Appeal disposed of.
(TEJINDER SINGH DHINDSA) JUDGE
22.2.2012. lucky
Whether to be reported? Yes.
1 issue framed by the court
Whether the judgments and decrees of the courts below are perverse and based on misreading and misappreciation of evidence on record?
Mohammad Ramzan
Bhagu
TEJINDER SINGH DHINDSA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
