JUDGMENT
S.K. Jain, J.
1. Facts. S/Smt. Sant Kaur widow of Balaka Singh, Gurmet Sudhar Kaur, Gur Akbar Akal Kaur and Gur Parverdigar Kaur daughters of Balaka Singh owned agricultural land measuring 135 Kanals-16 Marias in the area of village Kumbar Majra, Tehsil Thanesar, District Kurukshetra according to jamabandi 1970-71 as also for the year 1975-76. Gurjodh Singh was their Mukhtiar-i-am.
2. Gurjodh Singh inducted Tehal Singh, Santokh Singh, Karnail Singh and Darshan Singh sons of Vir Singh as tenants on the suit land on l/3rd Batai. They cultivated the land from Kharif 1971 to Rabi 1972. Since, the relations between Gurjodh Singh and these tenants were cordial, they delivered possession of the land to Gurjodh Singh back in Kharif 1972 whereafter it was cultivated by him on behalf of the owners upto Rabi 1974. During this period of two years Gurjodh Singh constructed houses, kothas and cattle-shed on this land. But the Patwari halqa did not correct the entries in the Khasra girdawari. An application for correction of such entries was filed before the Assistant Collector (Tehsildar) 2nd grade, Thanesar on 7.11.1974. It was decided in favour of the owners on 31.12.1975 and correction in khasra girdawari entries from Kharif 1972 to Rabi 1974 was ordered and this was effected vide rapat No. 207 dated 15.2.1976 by the Patwari Halqa. The defendant filed an appeal against the said order dated 31.12.1975 of the Assistant Collector (Tehsildar) Second Grade, Thanesar before the Collector, Kurukshetra who dismissed the same on 20.8.1976 and this litigation ended there.
The defendants instituted Civil Suit No. 518/1974 for permanent injunction on 21.10.1974 and obtained ad interim injunction restraining the owners from interfering in their possession. Gurjodh Singh made a statement that the owners will take possession in due course of law. There – upon the suit of the defendants was decreed on 29.7.1977 accordingly.
Gurjodh Singh executed three separate agreements to sell the land in question in favour of defendants No.1-4 on 2.9.1974 for a sale consideration of Rs. 46,828/- each vide two agreements and Rs. 23,414/- vide third agreement total amounting to Rs. 17070/-. He received earnest money of Rs. 4000/-each in two agreements and Rs. 2,000/- under the third one. It is pertinent to notice here that in none of the three agreements to sell it was shown as to in whose possession the land was and how the possession would be transferred to the proposed vendees.
Owner-plaintiffs filed Civil Suit No. 527/1976 on 27.11.1976 against the defendants for the decree of permanent injunction restraining the defendants from interfering in their possession in respect of the house in question except portion shown read in the site plan attached to the plaint. This suit was decreed on 2.5.1978. Certified copy of the judgment is Exhibit P12. Defendants preferred an appeal which was dismissed by the 1st Appellate Court on 2.8.1979. Certified copy of the judgment is Exhibit PI (page 91). The defendants preferred Regular Second Appeal which was dismissed on 15.5.1980. Copy of the judgment is Exhibit P18.
Regarding the portion of the house of which the defendants had taken forcible possession, the plaintiff filed Civil Suit No. 263 on 6.2.1975 which was decreed on 30.7.1979. Certified copy of the judgment is Exhibit P9. The defendants filed an appeal which was dismissed by the Addl. District Judge, Kurukshetra vide judgment and decree dated 6.8.1988. Certified copy of the judgment is Exhibit P17. The defendants preferred Regular Second Appeal which was dismissed on 31.12.1980. Photo copy of the order is Exhibit P-21.
Then the owner-plaintiffs filed Civil Suit No. 12/1981 Smt. Sant Kaur and four others v. Tehal Singh and 5 others for a decree for possession regarding the land on the ground that the defendants had taken possession thereof forcibly. It was dismissed by the trial court on 16.10.1981. The plaintiff-appellants preferred Civil Appeal No. 158/13 of 1981 instituted on 13.11.1981 which was dismissed by the Additional District Judge (III), Kurukshetra on 11.3.1982 which necessitated the filing of the present Regular Second Appeal No. 1292/1982 by the owner-appellants.
3. Mr. S.C. Mohunta, Senior Advocate appearing on behalf of the appellants has argued that the tenants had handed over the possession of the suit land to Gurjodh Singh in Kharif 1972 and he remained in possession thereof upto Rabi 1974. During this period, he had constructed houses, Kothas and cattle-sheds thereupon. Since, Khasra girdawari continued in favour of the tenants, these, an the application on behalf of the owners, were directed to be corrected by the Assistant Collector,, 2nd Grade, Thanesar vide his order December 31,1975. The tenants had preferred an appeal which was dismissed by the Collector, Kurukshetra vide his order dated 20.8.1976. The tenants did not challenge the said order of the Collector, which became final between the parties. The tenants having taken forcible possession of a part of the house, the owners had filed suit for permanent injunction against the tenants for getting them restrained from interfering the possession of the portion of the house which was still under possession of the owners. They had also filed suit against the defendants for obtaining possession of the portion of the house from which they had been forcibly dispossessed. Both the suits were decreed. But the suit of the plaintiff for possession of the agricultural land was illegally dismissed by the learned trial Court even after having come to the conclusion in Civil Suit No. 263 of 6.2.1975 vide judgment and decree dated 30.7.1979 (certified copy Ex.P-9) to the effect that the defendants had dispossessed the plaintiff forcibly from the said house. He did not consider the fact that the plaintiff had been dispossessed by the defendants from the house as well as the agricultural land, which is the subject matter of this suit, in one and the same transaction. Thus, the learned Courts below have misread and misconstrued the evidence. The above mentioned findings of the Courts below to the effect that the defendants had forcibly dispossessed the plaintiff from the property in dispute, was res judicata as the agricultural land which is the subject matter of this suit was directly and substantially in issue in the previous suit.
4. In order to appreciate the above argument, I have examined the pleadings, the issues and the evidence adduced by the parties in the suit out of which this Regular Second Appeal has arisen as also in Civil Suit No.263 of February 6,1975 for a decree of possession of portion of the house, which was decided by the Civil Court on 30.07.1979 (judgment Ex.P-9).
5. Civil Suit No. 12 out of which this R.S.A. has arisen was for possession by way of declaration of status as owner in respect of 135 Kanal-16 Maria of agricultural land situated in the revenue estate of Kumbar Majra, Tehsil Thanesar, District Kurukshetra. In this suit the relevant issues were:-
“4. Whether the plaintiffs are entitled to possession ?
4-A Whether the defendants surrendered the possession of the suit land in dispute in favour of the plaintiffs general attprney Shri Gurjodh Singh as alleged if so its effect?”
6. In the previous Civil Suit No. 527 of 1976, the subject matter of the suit was portion of a house which was in possession of the defendants and the owner plaintiff had sought a decree for permanent injunction against the defendants restraining them not to interfere in their possession.
7. In Civil Suit No. 263 of 6.2.1975, the subject matter of the suit was a portion of the house and the owner plaintiffs had sought a decree of possession on the ground that the defendants had forcibly dispossessed them therefrom. The relevant issues in Civil Suit No. 527 of 1976 for permanent injunction is:-
“Whether the plaintiffs are in actual occupation of the demised premises.”
In Civil Suit No. 263, the relevant issue was:-
“Whether the defendants are in occupation of the demised premises as prospective vendees in pursuance of sale agreements dated 2.9.1974 as alleged?”
8. In view of the above material on the record, it is evident that the subject matter in this suit was not directly and substantially in issue in the above mentioned two previous suits between the same parties and by no stretch of imagination it could be held that findings recorded by the Civil Court in the previous suit was res judicata in the present suit.
9. Mr. Mohunta, learned counsel for the appellant has taken me through the following portion of para No.24 of Ex.P-12, copy of the judgment dated 2.5.1978 passed by Shri. S.D. Anand, Sub Judge 1st Class, Kurukshetra in Civil Suit No. 527 of 1976 for permanent injunction:-
” Now, as it is, the finding of the Assistant Collector IInd Grade is that it was Gurjodh Singh, who was in possession of the land in question from Kharif 1972 to Rabi 1974 and that order was affirmed by the learned Collector, Kurukshetra, It is a conceded case (vide DW3 Dayal Singh) that the houses in question are located on the land in question. Now, if Gurjodh Singh was in possession of the land in question at the time of the construction and he constructed the houses thereon, the obvious presumption under the circumstances, is that he was in possession of the entire houses in question.”
10. From the above observation of the learned Sub Judge, Mr. Mohunta wants this Court to conclude that the Civil Court had found that general attorney of the plaintiff was in possession of the land which was the subject matter of the suit. This argument attractive at first sight, is, in my opinion, not tenable on the sound appreciation of the findings recorded by the learned Sub judge in his judgment in question (Ex.P-12). In para No. 26 of his judgment, he has held that in order to dispose of the controversy and in view of the conceded case that the construction of the house in question was made by plaintiff No.1. It was not necessary to determine the question as to whether the defendants had surrendered the possession of the land in question to the plaintiffs.
11. Mr. Mohunta learned counsel for the appellant has referred to the following portion of para No.7 of the judgment Ex.P-9 passed by learned Senior Sub Judge, Kurukshetra in Civil Suit No. 263 of 1979:-
“….The case of the plaintiff is, thus proved that the defendants surrendered the possession of the agricultural land and raised construction over a portion of the agricultural land, built up stores, cattle shed, several quarters and residential houses ….”
Relying on the ratio laid down in State of Punjab v. Bua Dass Kaushal, A.I.R. 1971 S.C. 1976, he has argued that the above said finding of the Court below in the previous suit is resjudicata in the present case. I do not find any force in this submission. The finding on issue No.l, when read as a whole it becomes clear that the learned Subordinate Judge has made the above said observation passingly, and not record the finding to that effect because the question of surrender of possession of agricultural land was neither directly nor substantially in issue in that suit. I have also carefully examined the above said judgment and am of the opinion that it does not help the appellants. In that case, the question was whether the decision in the writ petition operates as resjudicata in a subsequent suit filed on the same cause of action and then relying on Union of India v. Nanak Singh, A.I.R. X968 S.C. 1370, it was held that there was no good reason to preclude decisions of matters in controversy between the parties under Article 226 or Article 32 of the Constitution from operating as resjudicata in subsequent regular suits on the same matters in controversy between the same parties and thus to give limited effect to the principle of finality of decision after full contest.
12. As observed hereinbefore in none of the previous two suits, the subject matter in controversy was whether the defendants had forcibly dispossessed the plaintiffs from the agricultural land. There was no issue on this point in the previous suits.
13. The question of surrender of possession of the agricultural land by the defendants to the plaintiffs was not directly and substantially in issue in the previous suits and it was only collateral and incidental matter referred to by the Courts below for the purpose of deciding the matter of possession of constructed portion which was directly and substantially in issue, in those suits and, therefore, the above said observations cannot be said to be resjudicata between the parties. In holding the above view I am fortified by the ratio laid down in Smt. Gangabai v. Smt. Chhabubai, 1982 Revenue Law Reporter 92.
14. Mr. Mohunta, has also relied upon the ratio laid down by this Court in Gondhara Transport Co. (Pvt) Ltd., v. State of Punjab and Ors., A.I.R. 1966 Punjab 354.I can possible have no quarrel with the preposition of law laid down therein to the effect that the general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matters relating to the title of both parties to the suit are touched in the issues, though indirectly or even obscurely, and evidence has been led about them, then the argument that a particular plea was not expressly taken in the pleadings would be purely formal and technical and cannot succeed. What the Court has to consider in dealing with such an objection is whether the parties knew that the matter in question was involved in the previous trial, and whether they led evidence about it, and if the court comes to the decision that the parties were aware of the plea and had led evidence thereon the plea cannot be allowed to be raised again. When the facts and circumstances of this case are tested on the envil of the above said guide line, I find that in the previous suit, the parties were very clear in their minds that the question of dispossession of the plaintiffs from the agricultural land was not involved and therefore, they had not led evidence about it. Moreover, the Court had not recorded any finding that the parties were aware of that plea and had led evidence. Another Supreme Court judgement in Bhagwati Parshad v. Chandramaul, A.I.R. 1966 S.C. 735 can also be noticed in support of the above preposition.
15. The observation of the Subordinate Judge in Para No. 24 of his judgment as mentioned above was mere opinion on a matter not necessary for the decision of that case and not arising out of the issue before it. It was an ebiter dictum and, therefore, did not operate as resjudicata. In this regard, reference can be had to the ratio laid down in Amar Nath v. The Financial Commissioner, Taxation, Punjab, (1979)81 P.L.R. 47.
16. Besides, what has been stated above, from the record produced by the defendants, it is evident that on 10.5.1977, the plaintiffs had filed an application in form ‘L’ for the ejectment of the defendants on the grounds that they were tenants on the land and had failed to pay Batai from Kharif 1975 onwards. Vide order dated 31.5.1978 Ex. D.1 the Assistant Collector 1st Grade had dismissed the said application holding that the defendants had paid the batai. From this document, it is proved on record that the plaintiffs had admitted the defendants as their tenants on the land in dispute w.e.f. Kharif 1975. This piece of evidence belies the plea of the plaintiffs to the effect that the defendants had again taken over the possession of the suit land somewhere in Kharif 1974 after having relinquished their rights earlier in favour of the plaintiffs.
17. Again, on 18.7.1975, the plaintiffs had moved an application Ex.D-8 for correction of Khasra girdawari for Kharif 1974 and Rabi 1975. This application was dismissed on 5.1.1976 vide order Ex.D-2 as also Ex.D-5. This order was not challenged by the plaintiffs and hence became final.
18. Thirdly, vide order dated 10.3.1978 Ex:D-3 Assistant Collector 2nd Grade, had allowed the defendants to deposit the batai for the crops Kharif 1976 to Rabi 1977. In those proceedings, Gurjodh Singh general attorney of the plaintiffs had stated that he was prepared to accept the batai due from Kharif 1976. Similar is the order dated 17.5.1976, Ex.P.11, passed by the Collector 1st Grade allowing the deposit of batai for Kharif 1975 to Rabi 1976.
19. In view of the above documentary evidence and the legal position as discussed above, the argument of the learned counsel for the appellants has no merit. The First Appellate Court had considered and discussed this matter at length in para Nos. 13 to 19 of his judgment and no fault can be found with the conclusions arrived at by him.
20. In the result, there is no ground for interference with the concurrent findings of fact recorded by the two Courts below which are hereby affirmed. Consequently, this appeal fails being without merit and is dismissed with costs.