Nagar Council vs Bhagat Ram and Others

L.N. Mittal, J.

CM No. 12774.C of 2009

For reasons mentioned in the application which is accompanied by affidavit, delay of 33 days in filing the appeal is condoned. CM No. 12775.C of 2009

For reasons mentioned in the application which is accompanied by affidavit, delay of 49 days in refiling the appeal is condoned.

CM No. 12776.C of 2009

Allowed as prayed for.

RSA No. 4218 of 2009

Defendant Nagar Council, Sirhind has filed the instant second appeal.

Suit was filed by Sant Ram since deceased and represented by respondents as his legal representatives. Plaintiff Sant Ram alleged that he is owner in possession of the suit land. He had also filed suit No. 329 dated 19.9.1986 which was decreed by the trial court vide judgment and decree dated 7.4.1989 declaring plaintiff to be owner in possession of the suit property by adverse possession. Appeal preferred against the said judgment and decree by defendant Nagar Council was dismissed by learned Additional District Judge, Patiala vide judgment and decree dated 25.3.1992. The same attained finality. However, the plaintiff now learnt that mutation No. 5170 had been sanctioned in favour of the defendant regarding the suit land on 14.3.2000 on the basis of judgment dated 15.2.1996 of Hon''ble Supreme Court in Appeal No. 3432 of 1996 arising out of SLP No. 1595 of 1990, but the plaintiff was not party to the said appeal. Consequently, on the basis of the said judgment, the plaintiff could not be divested of his title over the suit property. The Apex Court held in the said judgment that suit land and other shamlat land did not vest in the Khewatdars of the village and rather vested in defendant Nagar Council. However, the plaintiff, who had already been declared owner in possession of the suit property as against the defendant, is not effected by said judgment of the Supreme Court.

Defendant, inter alia, pleaded that it is owner of the suit property in view of judgment dated 15.2.1996 of Hon''ble Supreme Court and the plaintiff has no right, title or interest over the suit property. Mutation No. 5170 has been rightly sanctioned in favour of the defendant on the basis of judgment of the Supreme Court. Defendant has right to dispossess the plaintiff from the suit land because the plaintiff is in unauthorised possession thereof. Various other pleas were also raised.

Learned Civil Judge (Senior Division), Fatehgarh Sahib vide judgment and decree dated 16.7.2005 decreed plaintiff''s suit. First appeal preferred by defendant has been partly allowed by learned District Judge, Fatehgarh Sahib vide judgment and decree dated 31.10.2008. Challenge to mutation No. 5170 sanctioned on the basis of judgment of Supreme Court has been undone because said mutation pertained to other land as well. However, even the lower appellate court has held that the said mutation shall not take away right, title and interest of the plaintiff in the suit land vested in him vide judgment dated 7.4.1989 passed in civil suit No. 329/19.9.1986. Feeling aggrieved, the defendant has preferred the instant second appeal.

I have heard Learned Counsel for the appellant and perused the case file.

Learned Counsel for the appellant vehemently contended that in view of judgment dated 15.2.1996 of the Supreme Court, defendant-appellant has become owner of the suit land. The contention cannot be accepted. The said dispute was between Khewatdars of the village and the defendant-appellant herein. Admittedly, the plaintiff was not party to the said litigation. Consequently, judgment dated 15.2.1996 of the Supreme Court cannot adversely effect the right, title and interest of the plaintiff over the suit land. On the contrary, vide judgment dated 7.4.1989 inter-parties, the plaintiff was held to be owner in possession of the suit property. Defendant''s appeal against the said judgment and decree dated 7.4.1989 was also dismissed by appellate court vide judgment and decree dated 25.3.1992. Consequently, dispute between the parties relating to he suit land attained finality and the plaintiff was declared to be owner in possession of the suit property as against the defendant. In view thereof, the defendant now cannot claim itself to be owner of the suit property as against the plaintiff. On the contrary, admittedly the plaintiff is in possession of the suit property. He is also owner thereof as already declared vide judgment and decree dated 7.4.1989. Consequently, there is no merit in the instant second appeal. No question of law much less substantial question of law arises for determination in the instant second appeal. Accordingly, the appeal is dismissed in limine.