JUDGMENT
R.L. Anand, J.
1. Unsuccessful plaintiff Babu Singh has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 23.2.1987 passed by Additional District Judge, Kurukshetra who dismissed the appeal filed against the judgment and decree dated 28.11.1984, passed by the Senior Sub Judge, Kurukshetra, who dismissed the suit of the plaintiff. The first appellate Court also dismissed the application under Order 41 Rule 27 C.P.C.
2. The brief facts of the case are that appellate Babu Singh and respondent No.5 Kulwant Singh, are the real brothers and they are the sons of Shri Rur Singh. Smt. Sant Kaur is their maternal grandmother (Nani) and she owned certain lands in village Arai in Tehsil Thanesar, District Kurukshetra. She made a Will of her land in the name of respondent
No. 5 Kulwant Singh on 8.11.1957. Shri Kulwant Singh sold the entire land to Balwant Singh and Saudagar Singh. Ajit Singh son of Babu Singh appellant brought a suit for pre-emption. Pre-emption suit was dismissed. An other suit for pre-emption was also brought by respondents
No. 1 to 4 Shri Ranjit Singh, Rajinder Singh, Raghbir Singh and Ravinder Singh and their suit was dismissed and hence they became the owners of the property in question.
3. Babu Singh plaintiff-appellant filed a suit for declaration against respondent
No. 5 that he was the owner to extent of 1/2 share and that the Will dated 8.11.1957 executed by Smt. Sant Kaur in favour of Kulwant Singh, was the result of fraud and misrepresentation. This suit was also dismissed vide judgment Ex.D.2 on the record. The appeal of Shri Babu Singh was also dismissed vide judgment
Ex.D.1.
4. The defendants No. 1 to 4 on the basis of above pre-emption decree in their favour, secured the possession of the suit land vide a report of the
Patwari, Ex.D.3 which is dated 3.9.1980 indicating that defendants No. 1 to 4 entered into actual physical possession of the property on 3.9.1980. Thereafter, the names of defendants
No. 1 to 4 also entered in the Khasra Girdawari continuously and in this regard the copy of Khasra Gir-dawari is
Ex.D.4.
5. Now the case set up by the plaintiff is that under a family partition between him and his brother Kulwant Singh, 1/2 share of the property in question fell to his share. Shri Babu Singh filed a separate suit on the basis of the said family settlement and that suit was also; dismissed vide the judgment and decree Ex.D.8 and D.7 on the record. Even after losing the litigation on different occasions, the plaintiff has filed the present suit for permanent injunction against the defendants and claimed the possession.
6. The suit was contested by the defendants on the plea that plaintiff is not in possession of the property on the date of the institution of the suit. Rather, Kulwant Singh delivered the possession to defendants No. 1 to 4 on 3.9.1980 and there is a Rapat
Rojnamcha of the Patwari.
7. From the pleadings of the parties, the trial Court framed the following issues :-
1. Whether the plaintiff is in possession of the suit land as alleged in the plaint?
2. Whether the suit is barred on account of the principle of res judicata? OPD
3. Whether the suit is not maintainable in the present form? OPD
4. Relief.”
The parties led evidence in support of their case and the trial Court decided the issues against the plaintiff and the suit was dismissed.
8. The plaintiff was not satisfied with the judgment and decree of the trial Court. He filed ,the first appeal before the Court of Additional District Judge, Kurukshetra who vide the impugned judgment and decree dated 23.02.1987 dismissed the appeals as well as the application under Order 41 Rule 27 C.P.C. for the reasons given in paras No.10, 11, 12 and 13 of the judgment. Paras No.10 to 13 read as under :-
“10. It was, therefore, that the appellant came in appeal which is being resisted from the other side. An application for additional evidence has been filed with the prayer that the alleged family settlement arrived at between the parties on 16.5.1972 may be allowed to be produced. It was also stated that this document was the real document which went to the root of the case and production of the same was for a just and proper decision of the case. This application has also been resisted from the other side. The learned counsel for the parties have been heard.
11. As it would appear from the aforesaid detailed background of the entire litigation it remains a fact that there has been a serious bad blood and strained relations between the two real brothers i.e. the appellant and respondent No.5 because of this property. The appellant has been ignored by his maternal grand mother and the respondent No.5 has been testated the entire property. Smt. Sant Kaur the maternal grand mother was the full owner of the property in the year 1957 when she made a Will. It is clear that the appellant has lost various litigations brought by him. The appellant examined PW1 Shri Pawan Kumar, PW2 Ram Singh and has relied upon the copy of the Khasra girdawari
Exs.P.1 and P.2 and PA. These documents do mention the name of the appellant to be in possession of the property in the year 1984 and also in the year 1979-80 as well as in the year 1981-82. However, those entries are just stray entries and are unfounded. There is a report of the Patwari Ex.D.3 by virtue of which it is mentioned that on 3.9.1980 the actual possession was got delivered to the pre-emptors. The pre-emptors had a legal right under the decree to get the possession of the land. There was no claim of the appellant Shri Babu Singh that he was a tenant nor did he resist the suit of the respondents
No.1 to 4 on the ground of tenancy. Rather his son brought a suit for pre-emption which too failed. So, in these circumstances in view of the over-whelming evidence that the respondents
No.1 to 4 got the possession of the property through a decree of the Court then it would be upsetting the entire previous litigation and entire circumstances if it is held that the appellant is in possession of the land which would be also unfounded. Therefore, I am of the considered view that the finding arrived at by the learned trial Court as regards issue No. 1 is absolutely correct and has to be affirmed and is, therefore, affirmed.
12. Regarding issue No.2 also it is apparent from the reference to the certified copy of the judgment that the appellant has litigated on the same matters as are in dispute now and substantially the matters in issue No.3 the same in the previous litigation as are before this Court. Therefore, the finding on issue No.2 is also affirmed. Nothing is urged as regards issue No.3. The finding is, therefore, affirmed on this issue also.
13. The application for additional evidence being absolutely unfounded and there is not a word that how the written compromise leading to the family settlement could not be produced earlier, therefore, the only inference can be that such a document has been manoeuvred now”.
Aggrieved by the judgments and decrees of the Courts below, the present appeal has been preferred.
9. I have heard Shri J.B. Taccoria, Advocate, On behalf of the appellant and Shri R.C. Setia, Sr. Advocate, on behalf of the respondents and with their assistance have gone through the records of this case.
10. The short point for determination in this case is whether the plaintiff was in legal and established possession on the date of the institution of the suit. It is the common case of the parties that the property earlier belonged to Smt. Sant Kaur who willed away the property in favour of defendant No.5. Further, defendant No.5 sold the property in favour of defendants
No.1 to 4 and delivered the actual physical possession of the property in question on 3.9.1980. The Will was executed in favour of defendant No.5 on 8.11.1957. The plaintiff gave challenge to the Will that the said Will is a result of fraud and misrepresentation and that suit was dismissed.
11. On the contrary, defendants No. 1 to 4 filed a suit for pre-emption on the strength of their possession and on the basis of their tenancy and that suit was decreed meaning thereby the possession of defendants
No.1 to 4 stood established. In this regard, there is a documentary evidence in the shape of Rapat Rojnamcha dated 3.9.1980. The plaintiff earlier claimed 1/2 share on the basis of one family settlement. That suit of the plaintiff was also dismissed.
12. In these circumstances, it is difficult to hold that plaintiff was ever in established possession of the property in question on the. date of the institution of the present suit. The learned counsel appearing on behalf of the appellant made an effort to convince this Court that the request of the appellant for leading additional evidence has been illegally ignored by the first appellate Curt and in these circumstances the suit is liable to be remanded to the first appellate Court with the direction to take the evidence of family partition and then to decide the case on merits. The argument is not, acceptable. The additional evidence cannot be given in the Court as a matter of right. One has to make out a case under the strict provision of Order 41 Rule 27 C.P.C. The deed of family partition must be in the possession of the plaintiff and he could produce the same before the trial Court. Moreover, on the basis of that very document, the plaintiff earlier tried his luck and that suit was dismissed. In these circumstances, the alleged family partition was not going to give any assistance to the first appellate Court for the proper adjudication of the matter. Once the plaintiff’s suit with regard to title and possession had already failed, the second suit on the same cause of action was barred by the principle of res ju-dicata.
Thus, I do not see any merit in this appeal and dismiss the same with no order as to costs.