Chander and Others vs Hari Singh and Others

Gurdev Singh, J.—The Appellants-Plaintiffs, Chander and others, filed suit for declaration to the effect that they are the owners in possession of 15 kanals 17 marlas of land situated in village Bajitpur Saboli, Tehsil and District Sonepat . Their suit was dismissed by Civil Judge(Junior Division)Sonepat, vide judgment and decree dated 7.4.2009. They preferred first appeal against that judgment and decree, which was dismissed by Additional District Judge, Sonepat, vide judgment and decree dated 23.4.2009. Aggrieved by those judgments and decrees, they preferred this second appeal.

The suit was filed by the Plaintiffs in the representative capacity under Order 1 Rule 8 CPC on the ground that there are 36 proprietors of the land and it is not possible to impaled all of them. They pleaded in their plaint that they and their predecessors-in-interest had been cultivating the land in dispute much before the year 1879-80 from generation to generation, as tenants without payment of any rent to the recorded land owners. They had been paying the land revenue and the cases under the persons recorded as owners.

The suit was contested by the Defendants. In their written statement they denied the contentions of the Plaintiffs. They pleaded that the Plaintiffs have come out with a false and frivolous suit and have not come to the Court with clean hands. Previously, they filed Civil Suit No. 158 of 1993 against Udey Singh and others in the Court at Sonepat, which was dismissed as withdrawn on 26.9.1996 without getting any permission to file a fresh suit on the same cause of action. On 18.10.1996, they filed Civil Suit No. 170/1996 against general public and others, which was also dismissed as withdrawn on 4.2.2003 without getting permission to file fresh suit on the same cause of action. Therefore, this suit is barred by principles of res judicator and under Order 23 Rule 1(4) CPC.

On the pleadings of the parties, following issues were framed by the learned trial court:

1 Whether the Plaintiffs are entitled for a decree of declaration that they have become owners of the suit land as prayed for?OPP

2 Whether the suit of the Plaintiffs is not maintainable as their suit is barred by the principle of res judicator ?OPD

3 Whether the Plaintiffs have no cause of action and locus stand to file the present suit?OPD

4 Whether the Plaintiffs have not come with clean hands to the Court? OPD

5 Relief

To succeed in the suit, Chander -Plaintiff, himself entered the witness box as PW-1. On the other hand, Defendants examined one Suresh, DW-1.

After going through that evidence and hearing learned Counsel for both the sides, learned trial court decided all the issues against the Plaintiffs and resultantly dismissed their suit.

I have heard learned Counsel for the Plaintiffs.

It has been submitted by counsel for the Plaintiffs that substantial question of law arises in the present appeal in view of the fact that the lower courts could not have recorded the finding against the Plaintiffs that the suit was barred under Order 23 Rule 1(4) CPC as the cause of action is recurring one and the Plaintiffs could have filed the suit even after the withdrawal of the previous suits without obtaining the liberty to file a fresh suit on the same cause of action.

There is no force in this contention of the learned Counsel for Plaintiffs. The suit has been filed for declaration to the effect that the Plaintiffs are the owners in possession. The previous suits were also filed with the same prayer. By no stretch of imagination it can be said that cause of action for filing the suit for declaration regarding the ownership and possession is recurring cause of action. Concurrent findings were recorded against the Plaintiffs by both the courts below. It cannot be said that any substantial question of law arises in this appeal. Therefore, the same is dismissed.