RSA No.1708 of 2007(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No.1708 of 2007(O&M)
Date of Decision: 23.11.2009
Hoshiar Singh
....Appellant
Versus
Sona Devi & Ors.
....Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present:Mr.Sanjiv Gupta, Advocate for the appellant.
Mr.L.N.Verma, Advocate for the respondents.
***
Sabina,J.(Oral)
Plaintiff Mahavir Singh and Hoshiar Singh filed a suit for
permanent injunction restraining defendants Jaggu, Sarjit, Ram Singh
and Ram Kumar from interfering in their peaceful possession forcibly,
illegally or any other manner. Suit of the plaintiffs was dismissed by
the trial court vide judgment and decree dated 19.05.2003. Appeal
filed by the plaintiffs against the said judgment and decree was
dismissed by learned Additional District Judge, Sirsa vide judgment
and decree dated 22.01.2007. Hence, the present appeal by the plaintiff
no.2.
Brief facts of the case, as noticed by the lower Appellate
Court in paras 2 and 3 of its judgment read as under:
RSA No.1708 of 2007(O&M) 2
“2. The case of the plaintiffs before the trial court was
that the plaintiff no.1 and his brothers Devki Ram and Hari
Singh are owners in cultivating possession of the land
measuring 19 kanals, 15 marlas comprised in khewat No.86,
Rect. No.77, Killa No.11(8-0), 12/1(2-16), Rect. No.78, Killa
No.7/2 (0-19),15(8-0). Like wise, the plaintiff no.2 Hoshiar
Singh and his brothers Dunger Ram, Bhoor Dutt are owners
in possession of land 6 kanals, 8 marlas land comprised in
khewat No.117min, Rect.No.78 killa No.14(6-8) as per
jamabandi for the years 1995-96 of village Khari Surera; that
the defendants are strong head persons. They have their land
in the revenue estate of village Kishanpura situated towards
the Western side of the land of the plaintiffs as shown in
Akshizra of village Khari Surera attached with the plaint. The
defendants have no right title or interest to interfere in the
above mentioned land of the plaintiffs. In the consolidation
proceedings, no passage was ever left through above
mentioned land of the plaintiffs. Nor the defendants have
ever moved any application before the competent court for the
sanction of the passage through the land of the plaintiffs but
even then the defendants in order to approach their land
situated in the revenue estate of village Kishanpura want to
get a passage on the Northern Killa line of Rect. no.78 killa
no.14 and 15 and Rect. No.77 killa no.11 and 12/1. They
threatened to interfere in the ownership and possession of the
RSA No.1708 of 2007(O&M) 3plaintiffs and to destroy their crops standing in the aforesaid
killa numbers. The plaintiffs requested the defendants not to
do so but to no use. Therefore, the plaintiffs filed the suit
praying for a decree of permanent injunction restraining the
defendants from interfering forcibly and illegally or in any
manner in the ownership and cultivating possession of the
plaintiffs over the land mentioned above (hereinafter called
land in dispute). The plaintiffs also prayed for permanent
injunction restraining the defendants from creating any
passage through the land in dispute.
3. The defendants no.1 to 4 appeared and filed their
written statement contesting the suit on the grounds that the
plaintiffs have got no right to file the suit; they have not come
to the court with clean hands; that they have
suppressed/concealed the fact of earlier litigation in respect of
the Rasta through the land in dispute; that in the first round of
litigation Kanshi Ram and Jaggu Ram sons of Bharu Ram,
Maman son of Gumana alias Khumana had filed suit No.623
of 1973 of permanent injunction against Bal Ram, Buti Ram
sons of Hardayal and Smt.Ram Payari wife of Nathu and in
that suit they claimed that they have acquired a right of
passage through the land in dispute as easmentary right. They
sought a decree of permanent injunction restraining the
defendants from causing any interference in their use of
passage; that the suit of the plaintiffs was dismissed by the
RSA No.1708 of 2007(O&M) 4then SJIC, Sirsa vide judgment and decree dated 30.11.1978.
The plaintiffs of that suit filed the appeal which was allowed
by the then learned District Judge, Sirsa by means of
judgment and decree dated 20.7.1979. Consequently, that suit
was decreed and defendants of that suit were restrained from
causing any interference in the easementary right of passage
of the plaintiffs. The defendants of that suit filed the regular
second appeal which was dismissed by Hon’ble High Court by
means of judgment dated 27.8.1979. Though the earlier
decision in the first litigation became binding on the parties of
that suit and their successors in interest but even then Devi
Lal, Hari Singh and Mahabir Singh sons of Shri Sheo Chand
filed another suit against Kanshi Ram, Jaggu, Daulat Ram son
of Bharu Ram and one Moman Ram seeking permanent
injunction restraining defendant of that case from interfering
into the possession of land of killa nos.11, 12, 19/2, 20 of
Rect. No.77 killa no.7/2, 15 of Rect. No.78. Dev Lal etc had
claimed themselves to be transferees of the previous owners
of that land; that suit i.e. Civil Suit No.723 dated 11.9.1979
was dismissed with costs by the court of the then SJIC, Sira
vide judgment and decree dated 14.11.1998. Devi Lal and
others (the plaintiffs of that suit) filed appeal against the
judgment and decree dated 14.11.1981; that appeal was
dismissed by the court of the then learned District Judge,
Sirsa vide judgment and decree dated 19.5.1983. Devi Lal etc
RSA No.1708 of 2007(O&M) 5including Mahavir Singh(present plaintiff No.1)filed RSA
before the Hon’ble High Court. The RSA No.1715 of 1983
was pending at the time of the filing of the present suit but
now that RSA has been dismissed vide order dated
17.112.2003; the defendants further pleaded that the suit of
the plaintiffs was barred by principle of resjudicata; that the
suit was false, frivolous, vexatious and was liable to be
dismissed with special costs under Section 35-A CPC; that the
plaintiffs have not complied with the provisions of Order 7,
Rule 1-J CPC; that the plaintiffs have no cause of action to
file the suit; that the defendants have been using the passage
through middle line of killa no.7/2 and 14, 6 and 15 of Rect.
No.78 and also alongwith the Northern side of killa no.11 and
12 of Rect. no.77 as easementary right since long. With these
averments, the defendants no.1 to 4 prayed for dismissal of
the suit.
On the pleadings of the parties, the following issues
were framed by the trial court
1.Whether there is no passage as alleged?OPP.
2. Whether the suit of the plaintiff is hit by the
principle of resjudicata?OPD.
3. Relief.”
Learned counsel for the appellant has submitted that the
dispute was only with regard to the passage, which was in existence in
the suit property. Learned counsel for the appellant has further
RSA No.1708 of 2007(O&M) 6
submitted that so far as the passage was concerned, the defendants
could use the same and the plaintiffs would not stop the defendants
from using the passage which was already in existence. However, the
defendants were not entitled to interfere in the other land of the
plaintiffs.
The learned counsel for the respondents has submitted that the
submissions made by the learned counsel for the appellant were
acceptable to him. The defendants had no intention to interfere in the
possession of the other land of the plaintiffs. The defendants only
wanted to use the passage which was already in existence in the suit
land as has already been settled in the previous litigation between the
parties vide judgment and decree dated 20.07.1979.
Both the counsel for the parties have submitted that the suit of
the plaintiffs for permanent injunction was, thus, liable to be decreed
qua the remaining land except the passage in dispute which was already
in existence as had been settled in the earlier litigation between the
parties.
In view of the statements made by the learned counsel for the
parties this appeal is partly allowed. The impugned judgments and
decrees of the courts below are set aside. The suit of the plaintiffs is
partly decreed to the effect that the defendants are restrained from
interfering in the land of the plaintiffs. However, suit of the plaintiffs
qua passage in dispute is dismissed and the defendants are at liberty to
use the passage which is in existence as has already been settled in
earlier litigation between the parties as well as in the present litigation.
RSA No.1708 of 2007(O&M) 7
This appeal stands disposed of accordingly.
23rd Nov.2009 (SABINA) Seema-II Judge