Gurdev Kaur vs Gurnam Singh

Jaswant Singh, J.

C.M. No. 12582-C of 2011

Present application u/s 5 of the Limitation Act has been filed for condonation of 87 days delay in filing the present appeal. For the reasons stated in the application, which is supported by an affidavit, the same is allowed. Delay of 87 days in filing the appeal is condoned.

C.M. No. 12584-C of 2011

Appellant has filed the present application under Order 33 Rule 1 CPC seeking permission to file the present appeal as an indigent person.

In view of the fact that before both the courts below, the plaintiff-appellant was permitted to pursue as an indigent person and her circumstances has not changed, therefore, present application is allowed and the plaintiff-appellant is allowed to maintain the present civil appeal as an indigent person.

Plaintiff-Gurdev Kaur is in second appeal against the concurrent findings returned by both the courts below whereby her suit for possession has been dismissed by the learned Civil Judge (Sr. Division), Muktsar vide judgment and decree dated 17.11.2009 and the findings thereof have been affirmed in appeal by the learned District Judge, Sri Muktsar Sahib vide judgment and decree dated 8.4.2011.

Plaintiff-appellant filed a suit for possession of land measuring 1 kanal 9 marlas situated within the lal lakir of Village Kotli Sanghar as fully detailed and described in the head note of the plaint. It was asserted that the plaintiff is in continuous possession as owner for the last 50 years of the suit property.

The defendants contested the suit and stated that earlier the husband of the plaintiff, namely, Gora Singh claiming himself to be owner in possession by way of adverse possession had filed a suit for permanent injunction against the answering defendants and the said suit was dismissed by the learned Civil Judge (Jr. Division), Muktsar vide judgment and decree dated 10.8.1999. The appeal filed by the aforesaid Gora Singh was also dismissed by the learned Addl. District Judge vide judgment and decree dated 5.9.2001. It was submitted that the property in both the suits was identical and the suit was, thus, barred by the principles of res judicata. The defendants claimed themselves to be in possession since 17.7.1996 having been put in possession in pursuance to an agreement to sell dated 17.7.1996 with the L.Rs. of the original owner-Gurdeep Singh of the plot in dispute.

After hearing learned counsel for the parties, I find no merit in the present appeal and the same deserves dismissal.

Both the courts below have concurrently found that the property in the present suit was identical to the one involved in the other suit filed by the husband of the plaintiff, namely, Gora Singh and thus barred by the principles of res judicata. as the plaintiff claims to have succeeded her husband''s interest although he is still alive. Even otherwise, the plaintiff to seek possession on the basis of title, has otherwise miserably failed to prove her title of the suit property. In view of the aforesaid discussion, present appeal is dismissed.