Lakhsmi Dutt and Others vs Chief Administrator and Others

Swatanter Kumar, J.—This regular second appeal is directed against the judgment and decree passed by the learned 1st Appellate Court dated 6.3.1997 vide which the learned 1st Appellate Court dismissed the appeal of the appellants while leaving the parties to bear their'' own costs. In order to appreciate the contentions raised by the learned counsel appearing for the parties in this appeal, it is necessary that bare minimum facts giving rise to the present appeal are noticed at the very outset:

Plaintiff Laxmi Dutt and others had filed the suit alleging that they are owners of shamlat patti Nathan and in possession of the suit land bearing Khewat No. 139, Khatoni No. 221, Khasra No. 1219 (1 bigha 4 biswas) situated in the revenue estate of Mauza Faridabad. The suit land was being used allegedly by them for storing cow-dung cakes, fodder and tethering cattle. Certain temporary structures had been raised on this land. The defendants, Faridabad Complex Administration and its employees had threatened the plaintiff on 9.3.1987 to remove these structures, goods and articles lying on the said land and also to demolish the structures raised thereupon. However, the plaintiffs were able to resist demolition on that date. Staff of the defendants had gone back giving clear threat that they would demolish the same and develop a park in the suit land. The action of the defendants is stated to be malafide and without authority of law by the plaintiffs. On these facts, the suit for mandatory injunction was instituted by the plaintiffs against the defendants. While contesting the suit, defendants No. 1 and 2 filed joint written statement and raised various preliminary objections as to very maintainability of the suit and locus-standi of the plaintiffs to file the suit. The very factum of possession of the plaintiffs and that they were storing cow-dung cakes, fodder and tethering cattle in the land in question is specifically denied. According to the defendants, the suit land was lying vacant and was in possession of the Administration and they were planning to develop a park and green belt for the benefit of the general public. Other defendants filed independent written statements praying for dismissal of the suit. It is averred that khasra No. 1219 was not in existence at the spot and the suit was not maintainable. It was further averred that Laxmi Dutt, one of the plaintiff, had filed earlier Suit No. 540 of 1985, which was decided on 15.9.1988 against defendant No. 3. This suit was dismissed. Laxmi Dutt had filed an appeal against the said judgment, which was also dismissed on 10.5.1989 and as such, the present suit is an abuse of process of law. Learned trial Court on various pleadings of the parties had framed the following is sues vide its order dated 20.11.1987 :-

Whether the plaintiffs and other share holders of shamlat patti, land owners are owners in possession of the suit land? OPP.

If issue No. 1 is proved, whether the plaintiff are entitled to injunction as prayed for? OPP.

Whether the plaintiffs have no locus-standi and cause of action to file and maintain the present suit? OPD.

Whether the plaintiffs are estopped from filing the present suit by their acts and conduct? OPD.

Whether the present suit has been filed by the plaintiffs in collusion of defendant No. 1 and 2, if so, its effect? OPD.

Whether the present suit is barred by principles of res-judicata? OPD.

Relief.

As is clear from the record, defendants No. 3 and 4 were impleaded as parties vide order dated 18.5.1990, in spite of the objection of the plaintiffs. Thereafter, the court had framed fresh issues vide order dated 8.1.1991. After the issue were re-framed in the year 1991, the plaintiffs did not lead any evidence to discharge their onus nor even statement was made on their behalf that the evidence already recorded should be read in evidence and no documents were not tendered in evidence. In this situation, learned trial Court dismissed the suit while recording the following findings :-

"The plaintiffs have alleged that they are in possession of the suit land as share-holders is shamlat patti Nathan of which the suit land belongs. However, they failed to lead any evidence to prove their contention. Hence, I decide this issue against the plaintiffs."

The suit was dismissed vide judgment dated 13.12.1993. The appeal against this was preferred by the plaintiffs which was also dismissed vide a detailed and well reasoned judgment of the learned 1st Appellate Court dated 6.3.1997 giving rise to the present regular second appeal. In law the approach of the learned trial Court cannot be said to be incorrect because steps in accordance with law ought to have taken by the plaintiffs to prove their case after issues were framed in the year 1991, which admittedly was not done. Even, if the case of the plaintiffs is examined from another point of view ignoring this approach of the learned trial Court, then one can hardly find any error in the judgment of the learned 1st Appellate Court. Learned 1st Appellate Court discussed in detail even the earlier evidence which in law could not be treated as evidence, as issues were re-framed afresh in the year 1991 upon addition of new parties. Defendants No. 3 and 4 were neither parties to the framing of issues on 20.11.1987 nor any evidence was recorded in their presence which could be said to be evidence in law against them. Learned 1st Appellate-Court has even discussed the consequences arising from Ex. P2, which is copy of jamabandi for the year 1984-85. Shamlat Patti Nathan is shown owner to the extent of 7374/10939 share only and remaining land is owned and possessed by Praduman Kumar to the extent of 631/10939 share. Similarly, Jayanti Prashad and Lok Chand are owners to the extent of 1716/10939 share in equal shares and Ashok Kumar to the extent of 1218/10939 share. None of these share-holders/owners had filed the suit nor were impleaded as party to the present suit. The land described in Ex. P2 which was alleged to be foundation of the suit, had already been sold and mutation recorded in that regard. The contention of the plaintiffs that they had raised structures on the land in dispute stood completely falsified by their own documents Ex. P2 and P4 where the land in question was shown as Banjar Qadim and Gair Mumkin. The documents produced by the plaintiffs themselves did not support the case pleaded in the plaint. In view of this discussion, I have no hesitation in affirming the findings of the courts below that the plaintiffs-appellants have miserably failed to discharge the onus placed upon them in accordance with the issues and to substantiate their case as pleaded by any cogent and proper evidence.

The fact that the plaintiff had filed earlier suit against defendant No. 3 on identical facts and had failed, cannot be ignored. The judgment rendered by the Court of competent jurisdiction in suit No. 540 of 1985 which was affirmed by the learned 1st Appellate Court, is binding and conclusive between the plaintiffs and defendant No. 3 even of today. With regard to other defendants, it is relevant piece of evidence to show that the claim of the plaintiffs is not sustainable. During the course of arguments, the learned counsel appearing for the appellants even did not dispute this fact that the said judgment has become final between the appellants and respondent No. 3.

It is an admitted fact that the area is being developed as public park in the larger interest of public. The present suit is certainly an attempt on the part of the plaintiffs to obstruct the achievement of this laudable purpose. The rights available to citizen are obviously pre-supposed discharge of obligation towards the State by such citizen. The plaintiffs were fully aware that they have no right over the suit land and their previous suit has already been dismissed by the court of competent jurisdiction. The present suit is a glaring example of abuse of process of law. frivolous and luxurious litigation. The casual irresponsible attitude of the plaintiffs even in persuing the present suit is obvious from the fact that they led-no evidence to substantiate their pleadings upon impleadment of defendant No. 3 and 4. To my mind, the Court must take serious note of such frivolous litigation and take steps so that such litigation is prevented at the very thresh-hold and cannot consume valuable time of all concerned. Consequently, I find no justification whatsoever to disturb the concurrent findings arrived at by the learned courts below. The approach of the learned courts is completely in consonance with the settled principles of law. This appeal deserves nothing but dismissal with costs. Consequently, the appeal is dismissed with costs which are assessed at Rs. 5,000/-. Half of the costs be sent to Legal Aid Cell, Haryana and half be distributed between the defendants in equal shares.