Ved Parkash Vs. Balram Dass - Court Judgment

Excerpt:
- - as well as by the principles of res indicata and order 2 rule 2 of the c. 20/- only and he was allowed to make good deficiency of the court-fee.a.l. bahri, j.1. this is ved parkash plaintiffs appeal in a suit for possession of property in dispute as described in the plaint known as shop constructed on khasra nos. 1178/1119 and 1179/1119 situated in village amloh which was decreed by the trial court on january 7, 1988 but dismissed by the lower appellate court on appeal on december 2, 1988. earlier the plaintiff had filed suit no. 244 of 1984 against the defendant for possession of the shop which was dismissed on june 10, 1987. hence the present suit was filed by the plaintiff claiming to be owner of the shop which was alleged to be in illegal occupation of the defendant balram dass. the suit was contested by the defendant, inter-alia, on the preliminary objections that the same was barred under order 23 rule 1 to 4 of the c.p.c. as well as by the principles of res indicata and order 2 rule 2 of the c.p.c. the defendant claimed to be joint owner of the land comprising khasra numbers mentioned above and the plaintiff could get his share partitioned. the land of aforesaid khasra numbers were jointly owned by babu ram to the extent of 1/2 share from whom the defendant purchased on april 30, 1985 and raised a super structure. earlier he was tenant of babu ram. the ownership of the plaintiff over the disputed site was disputed. since the earlier suit was dismissed, and findings recorded therein adverse against the defendant were not binding, as the defendant had no right of appeal. even otherwise such findings were not necessary to be recorded. the suit was otherwise dismissed in the replication filed by the plaintiff, the stand taken up in the plaint was reiterated. the trial proceeded on the following issues:-1) whether the plaintiff is owner of the shop in question opp 2) whether the defendant is in unauthorised occupation of the shop in question opp. 3) whether the suit is barred under order 23 rule 1 cpc? opp 4) whether the suit is barred by the principle of res judicata opd. 5) whether the plaintiff has got no locus standi to file the present suit opd 6) whether the suit for possession of specific portion is not maintainable as the defendant is joint owner of the property in suit opd. 7) whether the suit is not properly valued for the purposes of court-fee and jurisdiction opd. 8) relief. 2. issues nos. 1 and 2 were decided together in favour of the plaintiff who was held to be owner of the shop in question and the defendant balram dass in unauthorised occupation thereof. issues nos. 3 and 4 were not pressed before the trial court on behalf of the defendant. under issue no. 5 the plaintiff was held to have locus standi to file the suit. issue no. 6 was decided against the defendant and the suit for possession was held to be maintainable. under issue no. 7 it was held that for purposes of court-fee and jurisdiction, the value should be rs. 1000/-, however, the plaintiff had paid court-fee of rs. 20/- only and he was allowed to make good deficiency of the court-fee. ultimately the suit was decreed for possession of the suit property. the additional district judge, on appeal, filed by the defendant reversed the findings of the trial court, on issues nos. 1 and 2. the plaintiff was held to be a co-sharer in the land comprising in two khasra numbers mentioned above and that he could get the same partitioned. the defendant was held to be owner of 1/2 share in the land comprising aforesaid khasra numbers as having purchased the same from babu ram, a co-owner and was also held to be owner as such, and thus the suit was dismissed.3. learned counsel for the appellant-plaintiff has argued that the plaintiff should be held to be absolute owner of the shop in dispute and the site underneath in view of the findings recorded by the civil court in the earlier suit. it was also held therein that the plaintiff was the owner and the defendant trespasser. this contention is devoid of merit. since the previous suit was dismissed the defendant had no opportunity to challenge the findings recorded in that suit as ultimate decision was in his favour. exhibit p.2 is the judgment in the previous suit no. 244 of 1986 which was decided by the sub judge i class, dasuya, on june 10, 1987. this was held to be barred under order 23 rule 1 and order 2 rule 2 and under section 11 of the c.p.c. earlier the plaintiff had filed a suit which was fixed for december 5, 1985 in the court of additional senior sub judge, dasuya, shri rajinder singh maini, advocate, for the plaintiff ved parkash made a statement that the suit be dismissed as withdrawn. the said suit was as such dismissed without permission of the court to file fresh suit on the same cause of action. in that suit the plea of ved parkash plaintiff was that balram dass defendant was his tenant in the shop in dispute. under issue no. 5 the plaintiff was held to be owner of the shop in dispute and under issue no. 6 it was held that the defendant was not the owner. it is those findings on issues nos. 5 and 6 that the plaintiff ved parkash is relying to prove his title alleging that the same would operate as res judicata. as already stated above, since the suit was dismissed as a whole, the plaintiff cannot take any benefit of findings so recorded as the defendant had no opportunity to challenge the same. in this context reference may be made to the decision of the full bench of the patna high court in arjun singh and ors. v. tara das ghosh,1 a.i.r. 1974 patna 1. the suit was dismissed on the preliminary issue regarding maintainability of the suit for want of notice under section 80 of the c.p.c., and for absence of cause of action. on other issues also adverse findings were recorded. it was held that the findings on other issues so recorded could not operate as res judicata as the defendant had no right to file an appeal.4. thus the findings recorded by the court on evidence produced in the present case on issues nos. 1 and 2 need to be discussed. the evidence produced by the parties is very limited. ved parkash plaintiff appeared as pw.1 and deposed about the site plan exhibit p.1 depicting the site in dispute. the shop in dispute was stated to be situated in the two khasra numbers mentioned above. he claimed to be owner of the shop. his name was so mentioned in the revenue record. he also referred to the findings recorded in the previous suit. during cross-examination he denied babu ram to be owner of the land of the two khasra numbers mentioned above, to the extent of 1/2 share but he purchased from pannu ram. he admitted possession of the defendant which was stated to be 10 years old. the defendant used to pay him rs. 30/- per mensem and the rent for the six years was due. he denied the suggestion that balram das defendant constructed the shop. exhibit p.4 copy of jamabandi was produced. on the other hand balram dass defendant appeared as dw 1 and deposed having purchased the site underneath the shop for rs. 600/- from babu ram vide sale deed dated april 30, 1985. the sale deed was registered: exhibit d.1 is the sale deed. he took possession of the site about 25 years ago and before that he was tenant of babu ram on payment of rs. 40/- per annum as chakota. during cross-examination he denied the suggestion that the plot covered by the sale deed exhibit d.1 was a separate one and not the plot in dispute. dw 2 babu ram is vendor who was produced to prove the sale deed exhibit d.1 who further stated that balram dass was in possession of the site since 1959-60 on payment of chakota at rs. 40/- per annum. during cross-examination he stated that he sold two marlas also vide sale deed exhibit d.1. on the eastern side there was shop of ved parkash plaintiff and towards the west a road. towards the north the house of hari dass and towards south that of amar nath and part of the school premises. exhibit p.1 plan produced by the plaintiff shows the site in dispute as 'abcd' with the boundaries as under:-towards east and the west has been shown the shop of the plaintiff, towards south is the verandah and beyond the rooms is shown house of pt. hari ram. the disputed site abcd and the 2 shops on the east and the west have shown to be in two khasra numbers mentioned above. exhibit p.4 is the jamabandi relating to the two khasra numbers mentioned above. in the column of ownership the entry is as under:-babu ram----------1/2 share. sita ram----------1/2 share.in the column of cultivation the name of punnu co-owner is recorded with vendee ved parkash in possession of land. this entry is in respect of khasra no. 1178/1119 and with respect to khasra no. 1179/1119. the entry in the column of possession is in the name of punnu co-owner and vendee sushama devi daughter of ved parkash. the area of these two khasra numbers has been mentioned as two marlas each. similar entry exists in copy of chakbandi for the year 1987-88, in respect of two khasra numbers mentioned above. from the evidence aforesaid it is quite clear that ved parkash and his daughter purchased land out of two khasra numbers mentioned above from punnu, a co-owner. from the sale deed exhibit d.1 it is also clear that balram dass defendant purchased land of the aforesaid khasra numbers from another co-owner babu ram. since possession of the plaintiff has not been established and admittedly it is that balram dass, and no tenancy has been established, ved parkash could be only held to be a co-owner of the land comprising in two khasra numbers mentioned above. the lower appellate court thus rightly returned the finding in this respect. balram dass defendant is in possession as a co-owner having purchased the site of these two khasra numbers from the other co-owner babu ram. ved parkash thus can only succeed in getting the joint land portioned to get separate possession of his share. his suit for possession as filed could not succeed. the trial court ruled out the sale deed exhibit d.1 wrongly from consideration as binding, the evidence produced in the present case was rightly discussed by the lower appellate court in arriving at the findings.5. for the reasons recorded above, finding no merit in the appeal the same is dismissed with no order as to costs.