JUDGMENT
Satish Kumar Mittal, J.
1. This is a defendants’ Regular Second Appeal against the judgment and decree passed by Additional District Judge, Patiala, whereby after reversing the judgment and decree of the trial court, suit of the plaintiffs-respondents for possession of the suit land has been decreed.
2. In the present case, in the year 1994, the plaintiffs-respondents filed suit for possession of the suit land measuring 54 bighas 19 biswas against the defendants-appellants on the basis of title stating therein that the defendants were in illegal and unauthorized possession of the suit land. In the suit, the defendants-appellants appeared and filed written statement taking the plea that the land in dispute was mortgaged by the plaintiffs to them for Rs. 90,000/- vide three mortgage deeds dated 20.2.1986 for Rs. 70,000/-, dated 17.2.1987 for Rs. 15,000/- and dated 15.9.1989 for Rs. 5,000/-. Due to the said plea taken by the defendants, the plaintiffs withdrew the suit in order to file a redemption application before the Collector under the provisions of the Punjab Redemption of Mortgages Act, 1913 (hereinafter referred to as ‘the Act’). Subsequently, the plaintiffs filed an application before the Collector for redemption of the alleged mortgage and also deposited Rs. 90,000/-. The defendants contested the said application and ultimately, the Collector dismissed the application vide order dated 24.3.1999, while holding that there was only agreement regarding mortgage of the land in dispute and those agreements are not registered one. As such, the defendants do not become mortgagees of the land in dispute. Therefore, it was held that the plaintiffs are not entitled to get the land redeemed from the defendants, because the same does not stand mortgaged with the defendants.
3. After the decision of the Collector, the plaintiffs filed the present/suit for possession of the land in dispute, wherein the appellants-defendants have taken a new plea that they are in possession of the suit land as lessee and the plaintiffs have received the lease amount of Rs. 90,000/-from them. They have also taken the plea that suit of the plaintiffs is barred under Order 23 Rule 1(4)(b) C.P.C., as the plaintiffs had withdrawn the earlier suit without permission to file fresh suit on the same cause of action.
4. The trial court, without deciding the issue as to whether the plaintiffs are entitled for possession of the suit land, dismissed the suit while holding that the same was not maintainable in the present form. It was held that the present suit has been filed by the plaintiffs on the same cause of action, on which the earlier suit was filed in the year 1994, which was dismissed as withdrawn without any permission to file fresh suit on the same cause of action.
5. Feeling aggrieved against the said judgment and decree of the trial court, the plaintiffs filed appeal. After hearing counsel for the parties, the first appellate court reversed the judgment and decree of the trial court and decreed the suit of the plaintiffs while holding that the present suit was filed by the plaintiffs on a different cause of action. Therefore, it cannot be said to be barred under the provision of Order 23 Rule 1(4)(b) C.P.C. on the ground that the previous suit was dismissed as withdrawn without permission to file fresh suit on the same cause of action. On merits, it has been held that in the earlier suit, the defendants had taken the plea that they were mortgagees of the suit land for a sum of Rs. 90,000/- and the mortgage can only be redeemed before the Collector under the Act. Accordingly, the plaintiffs withdrew the said suit to get the suit land redeemed from the defendants by filing redemption application before the Collector. The redemption application filed before the Collector was dismissed on the ground that the alleged mortgages were not created vide registered document, therefore, the defendants did not become mortgagee of the suit land. Thus, the plaintiffs were held not entitled to get the land in dispute redeemed from the defendants. After the said decision, when the plaintiff filed the instant suit, the defendants took the stand that they are in possession of the suit land as lessee and not as a mortgage. It has been held that the defendants have miserably failed to prove that they are in possession of the suit land as lessee. By taking into consideration the contradictory stand taken by the defendants, the first appellate court has held that these facts prove that the defendants were playing fraud not only with the plaintiffs, but also with the law, as they are misleading the court just to perpetuate their illegal and unauthorized possession over the land in dispute. Consequently, it has been held that the defendants are in illegal and unauthorized possession of the suit land and they are playing fraud with the plaintiffs as well as the court by taking false contradictory pleas. Hence, this appeal.
6. Learned Counsel for the appellants-defendants submits that the first appellate court has erred in law as well as facts, while reversing the judgment of the trial Court by holding that the present suit filed by the plaintiffs is maintainable. He submits that the previous suit instituted by the plaintiffs in the year 1994 and the present suit are arising from the same cause of action. Therefore, the instant suit is not maintainable in view of Order 23 Rule 1(4)(b) C.P.C., because the earlier suit was withdrawn by the plaintiffs without seeking permission of the court to file a fresh suit on the same cause of action. Learned Counsel further submits that the defendants have proved on record that they are in possession of the suit land as lessee. They have also paid the amount of Chakota of Rs. 90,000/- to the plaintiffs. It has been submitted that even in the revenue record, they are recorded as ‘Gair Marusi’ tenants, therefore, the first appellate court has acted without jurisdiction while decreeing the suit of the plaintiffs for possession, as in case of a tenancy, a tenant on the agricultural land can only be ejected/dispossessed under the provisions of the Punjab Tenancy Law read with Punjab Security of Land Tenure Act, 1953. Learned Counsel further submits that the present suit for possession is also not maintainable, because the plaintiffs have not challenged the order of the collector, whereby their application for redemption of mortgage has been dismissed.
7. After hearing counsel for the appellants-defendants and going through the impugned judgment and decree, I do not find any merit in the instant appeal. In my opinion, the first appellate court has rightly held that the present suit filed by the plaintiffs is not on the same cause of action on which the previous suit was withdrawn by them. Therefore, the present suit has been rightly held to be maintainable. Undisputedly, in the earlier suit, the defendants had taken the stand that they were mortgagees in the suit land for an amount of Rs. 90,000/- and for taking possession of the mortgaged land, the suit was not maintainable. In view of the said stand taken by the defendants, the plaintiffs withdrew that suit to enable them to file the redemption application before the Collector under the provisions of the Act. Before the Collector, the defendants took the stand that since the agreement under which the mortgage was created was not registered, therefore, they cannot be termed as mortgagee and the application was liable to be dismissed. Their contention was accepted and the application filed by the plaintiffs for redemption of the mortgage was dismissed. Section 12 of the Act provides that if a person is not satisfied with the order of the Collector, he has remedy to file a regular suit before the civil court. The limitation for filing such a suit is one year. Since the Collector has held that the defendants do not become mortgagee of the land in dispute therefore, the plaintiffs filed the present suit for possession within one year of the passing of the order by the Collector. Therefore, in my opinion, the plaintiffs got fresh cause of action after the decision of the Collector. Thus, it cannot be said that the plaintiffs are debarred from filing the present suit in view of the fact that the earlier suit filed by them was dismissed as withdrawn without permission to file fresh one on the same cause of action.
8. On merits, in the present case, the defendants have taken the stand that they are lessee on the suit land and they are regularly paying rent to the plaintiffs. This stand taken by the defendants is not only contrary to the earlier stand taken by them that they were mortgagee on the suit land, but they have not produced any evidence to prove that they ever remained as lessee on the suit land and had paid any rent at any time to the plaintiffs. In the revenue record, they have been recorded to be in possession as Gair Marusi and not as tenants. The columns of rent are blank. There is not an iota of evidence led by the defendants to prove that any amount of rent was ever paid by them to the plaintiffs. Learned Counsel for the appellants-defendants argued that the amount of Rs. 90,000/-, which was paid on 20.2.1986, 17.2.1987 and 15.9.1989, is the amount of rent, which was paid by the defendants to the Plaintiffs. This contention cannot be accepted. Undisputedly, in the earlier suit, it was pleaded by the defendants that the suit land was mortgaged with them for payment of the mortgage amount. According to them, the said amount was the mortgage amount. Now, they cannot be permitted to say, by taking the u-turn, that the said amount was towards the rent. I also do not find any substance in the argument raised by learned Counsel for the appellants-defendants that the civil court has no jurisdiction to entertain the suit for possession of the agricultural land as the suit for eviction of a lessee/tenant can be filed only before the Revenue Court under the provisions of the Punjab Tenancy Law read with Punjab Security of Land Tenure Act, 1953. The Provisions of those Acts are applicable only in case the landlord wants to eject the tenant from the agricultural land. In the present case, mere is no evidence that the defendants are tenants on the suit land. Once it has been found that they are not the lessee of the suit land, it cannot be said that the present suit is not maintainable in view of the provisions of the Punjab Tenancy Law read with Punjab Security of Land Tenure Act, 1953.
9. From the aforesaid facts, it appears that the defendants are taking contradictory stand before the different courts, in order to take undue advantage of their own wrong and to perpetuate their illegal and unauthorised possession over the land in dispute. Therefore, the first appellate court has rightly decreed the suit of the plaintiffs for possession of the suit land. I do not find any illegality or infirmity in the impugned judgment and decree.
10. No substantial question of law is involved in the appeal.
Dismissed.