Bhagwan Singh vs Mani Ram and Others

L.N. Mittal, J

This is second appeal by plaintiff-Bhagwan Singh, who has been unsuccessful in both the Courts below.

Plaintiff filed suit challenging mutation of suit land in favour of State Government and another mutation regarding allotment of suit land by State Government to defendant No. 4, both sanctioned on 23.03.1983. Defendant No. 4 sold the suit land to defendant Nos. 1 to 3 vide sale deed dated 01.12.1983 and mutation thereof was sanctioned on 16.04.1984. The said sale deed and mutation are also under challenge in the suit. Judgment and decree dated 10.09.1988 passed in Civil Suit No. 760 dated 20.07.1984 titled as ''Mani Ram v. Jai Ram etc.'' are also under challenge in the suit. The plaintiff alleged that he along with his brothers is co-sharers in possession of the suit land which was declared surplus by the State and was allotted to defendant No. 4. Mutations in favour of State and then in favour of defendant No. 4 are result of fraud and misrepresentation as plaintiff and other co-sharers did not receive any notice from the State Government. Defendant Nos. 1 to 3 had filed suit No. 760 dated 20.07.1984 against plaintiff and other co-sharers. In that suit, Counsel engaged by the plaintiff and other co-sharers did not appear and, therefore, the said suit was decreed ex parte vide judgment and decree dated 10.09.1988. The plaintiff and his brothers are not bound by the said judgment and decree which are result of negligence of their Counsel. Plaintiff had also earlier filed suit No. 615 dated 14.12.1989 decided on 28.02.1995, but the Court advised the plaintiff to file fresh suit and consequently, the instant suit was filed.

Defendant Nos. 1 and 2 contest the suit and controvert the plaint allegations and raised various pleas.

Learned Civil Judge (Junior Division), Mohindergarh vide judgment and decree dated 14.09.2005 dismissed the plaintiff''s suit. First appeal preferred by plaintiff stands dismissed by learned Additional District Judge, Narnaul vide judgment and decree dated 07.10.2008. Feeling aggrieved, plaintiff has preferred the instant second appeal.

I have heard learned Counsel for the parties and perused the case file.

The entire litigation leading to the filing of the instant second appeal at the instance of the plaintiff-appellant is completely frivolous, vexatious and unfounded and completely devoid of merit.

The plaintiff has not challenged the order declaring the suit land to be surplus. Without challenging the said order, mutation of suit land in favour of State Government and subsequent allotment of the suit land to defendant No. 4 and sale by defendant No. 4 to defendant Nos. 1 to 3 cannot be challenged.

The plaintiff has challenged the mutation of suit land sanctioned in favour of State Government and allotment of suit land by State Government to defendant No. 4. However, State Government has not been impleaded as party. Without impleading State Government as party, mutation in favour of State Government cannot be challenged.

Learned Counsel for the appellant contended that mutation in favour of State Government was sanctioned without notice to the plaintiff and other co-sharers. The contention cannot be accepted. Basis for mutation in favour of State Government was that the suit land was declared surplus and, therefore, the same vested in State Government. Consequently, without challenging the basis of vesting of suit land in State i.e. the order declaring the suit land to be surplus, the plaintiff cannot challenged the mutation of suit land in favour of State.

The suit is also hopelessly barred by limitation. Mutations in favour of State Government and defendant No. 4 were sanctioned on 23.03.1983 and the instant suit to challenge the same has been filed on 31.07.1995.

Judgment and decree dated 10.09.1988 passed in Suit No. 760 of 1984 have been challenged on the ground that the Counsel engaged by the plaintiff and other co-sharers in the said suit did not appear and, therefore, the said suit was decreed ex parte and the said judgment and decree are not binding as the same were passed on account of negligence of the Counsel engaged by the plaintiff and other co-sharers. I am afraid if judgment and decree passed by Civil Court can be challenged on such a ground. It is thus apparent that the matter has already been adjudicated upon against the plaintiff and other co-sharers and the plaintiff filed this frivolous instant suit to challenge the judgment and decree passed in the previous suit. The instant suit to challenge the judgment and decree dated 10.09.1988 is also hopelessly barred by limitation.

The plaintiff himself filed an earlier suit No. 615 dated 14.12.1989. Learned Counsel for the plaintiff-appellant states that the said suit was dismissed as withdrawn on 28.02.1995. It is admitted by Counsel for the appellant-plaintiff that no liberty was obtained in the previous suit to file fresh suit. Consequently, the instant fresh suit is also barred by Order 23 Rule1(4) of the Code of Civil Procedure.

From the aforesaid discussion, it is apparent that the suit filed by the plaintiff is completely unfounded, frivolous and vexatious, but he was not satisfied with the dismissal of the suit by the trial Court and filed first appeal, but even after dismissal of the first appeal, the plaintiff did not feel satisfied and has filed the instant second appeal. The entire exercise on behalf of the appellant is without any basis and completely untenable. The plaintiff has resorted to frivolous and vexatious litigation. Accordingly, the instant appeal deserves to be dismissed with heavy costs so as to curb frivolous litigation. It goes without saying that there is no merit in the instant second appeal. There is no illegality or perversity in the finding of the Courts below so as to warrant interference in second appeal. No question of law, much less substantial question of law, arises for determination in the instant second appeal.

For the reasons aforesaid, the instant appeal is dismissed with costs of Rs. 10000/-.