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Judgment
Rakesh Kumar Garg, J.—Appellant-Corporation filed a suit for possession alleging that it is owner of the land, as described in the head note of the plaint. Earlier defendant had encroached upon the suit land whereupon the plaintiff-appellant filed a suit for possession against the defendant-respondent. The suit was decreed vide judgment and decree dated 18.12.1980 and the appeal filed on behalf of the defendant-respondent against the aforesaid judgment and decree of the Civil Court was dismissed by the Additional District Judge, Gurdaspur vide judgment and decree dated 04.02.1982 and consequent to the aforesaid decree, plaintiff-appellant filed an execution application for taking possession of the land in dispute. The defendant-State delivered possession of the aforesaid land to the plaintiff-Corporation, which continued to be in possession of the same till recently. Now again, the defendant-respondent had taken forcibly possession of the suit land illegally. In spite of the requests made, the defendant-respondent has failed to vacate the suit land. Hence the instant suit.
Upon notice, the defendant-respondent appeared and filed written statement raising various preliminary objections. On merits, it was admitted that earlier the plaintiff-appellant had filed a Civil Suit which was decreed vide judgment and decree dated 18.12.1980, however, the Execution Application was withdrawn on 09.06.1992 by the plaintiff-appellant. It was further stated that the present suit was barred by limitation and also on the basis of principles of res-judicata. It was further stated that the earlier decree was not executable because of expiry of limitation period. It was denied that the defendant-respondent has encroached upon any land of the plaintiff-appellant and thus, dismissal of the suit was prayed for.
On the basis of the pleadings of the parties, the following issues were framed by the trial Court:
Whether the plaintiff is owner of the land measuring 23 Kanals 10 Marlas in village Fateh Nangal? OPP
Whether plaintiff is entitled to the relief of possession as prayed for? OPP
Whether the suit is not maintainable? OPD
Whether the suit is barred by the principle of res judicata? OPD
Whether the plaintiff is guilty of concealment of material facts, if so, its effect? OPD
Whether the plaintiff has no cause of action? OPD
Whether the suit is barred by time? OPD
Relief.
After hearing learned counsel for the parties and considering the evidence on record, the trial Court dismissed the suit vide its judgment and decreed dated 09.10.2009. While dismissing the suit, the trial Court observed as under:
All these issues are taken up together being interconnected and can be disposed of together vide common comprehensive discussion. Whereas onus to prove issues No. 1 and 2 was on the plaintiff that of issues No. 4 and 6 was on the defendants. The present case is a living testimony of imagination of a legal brain who when knowing that execution of a previous decree has become time barred, cooks up a fresh cause of action and seeks a relief which already stood granted to the plaintiff in the year 1982. Admittedly, the suit for possession of the present suit land, earlier filed by plaintiff was decreed by the Court of Sh. S.S. Hundal, SJIC, Gurdaspur vide judgment dated 18.12.1980. The appeal against the said judgment, decree was dismissed by the Court of learned Addl. District Judge, Gurdaspur on 04.02.1982. Plaintiff then filed execution application for taking possession of the said land. The further case of the plaintiff is that defendants delivered the possession of the suit land to the plaintiff who continued to remain in possession till recently. Perusal of statement dated 09.06.1992 Ex. D-3 reveals that Advocate Sh. S.S. Basra, counsel for the then DH (present plaintiff) had withdrawn the execution by stating that he does not wish to proceed with the execution and the same may be dismissed and that he shall file a fresh execution if required. Vide order dated 09.06.1992 Ex. D-4 the execution filed by the present plaintiff/DH was dismissed as withdrawn. Thus nowhere has the factum of delivery of possession of the suit land to the plaintiff by the defendants has come up. During the course of arguments, it was enquired upon from the learned plaintiff''s counsel as to on which specific date defendants had again taken forcible possession of the land in suit. Expectedly, learned counsel for plaintiff was unable to give a satisfactory reply to the said query. DW-1 Gurcharan Singh SDO denied in his cross-examination that the defendants had given possession of the suit land to the plaintiff. It is his specific case in his examination-in-chief that Dhariwal Rest House had been constructed on the suit land in the year 1912 by defendants. He has proved the photocopy of the plan of the Rest House as Ex. D3. There has been no cross-examination of the witness on this point as also on the point that the plaintiff/DH had failed to get the decree executed within limitation period. In such a situation when no fresh cause of action has been proved by the plaintiff, the present suit would be barred by principle of res judicata u/s 11 of CPC. The matter in question in the present case between the same parties has been decided by Civil Court in a previous judgment which has become final. Thus whereas on the basis of judgment Ex. P5 plaintiff is held to be the owner of the suit land, the present suit being barred by res judicata and plaintiff having no fresh cause of action to seek possession, issues No. 1 and 2 are held against the plaintiff and in favour of defendants. Likewise, issues No. 4 and 6 are also held against the plaintiff and in favour of defendants.
Feeling aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal, which was also dismissed by the first appellate Court vide its judgment and decree dated 29.09.2011.
Still not satisfied, the plaintiff-Corporation has filed the instant appeal submitting that the following substantial questions of law arise in this appeal:
(i) Whether the courts below erred in ignoring unimpeachable documentary evidence duly supported by ocular evidence of the appellant?
(ii) Whether the documentary evidence/revenue record (Jamabandis) supported by oral evidence of the appellant/plaintiff is not sufficient to prove the case of the appellant particularly when it has not been rebutted by the respondent?
(iii) Whether adverse inference can be drawn on account of non-response to the notice u/s. 80 CPC in the peculiar facts and circumstances of the present case?
In support of his case, counsel for the appellant has vehemently argued that the courts below have failed to appreciate that the present suit was filed on 12.08.2004 on a fresh cause of action as the suit land was again encroached upon by the respondent-Department after delivery of possession to the appellant in pursuance of the decree of the Civil Court dated 18.12.1980. According to learned counsel for the appellant, there is enough material on record to substantiate the aforesaid assertion of the appellant. It is further case of the plaintiff-appellant that the courts below have erred while holding that possession of the suit land was never delivered to the plaintiff-Corporation and it continued to remain with the respondent. Moreover, the courts below have failed to appreciate the fact that in spite of serving notice u/s 80 CPC, the respondent-Department has failed to respond to the said notice and in the peculiar facts and circumstances of the present case, an adverse inference be drawn against the respondent to the effect that they had taken forcible possession of the suit property again and thus, the substantial question of law, as raised, do arise and the judgments and decrees of the Courts below are liable to be set aside.
I have heard learned counsel for the parties and perused the impugned judgments and decrees of the Courts below.
Admittedly, suit for possession of land, as detailed in the head note of the plaint, was decreed in favour of the plaintiff-appellant and against the defendant-respondent on 18.12.1980. Further admittedly, the plaintiff-appellant filed an Execution Application for taking possession of the suit land. It is the case of the appellant that the defendant-respondent delivered possession of the suit land and the plaintiff continued to remain in its possession till recently, when again the plaintiff-Corporation was dispossessed.
However, Ex. D3 reveals that learned counsel appearing for the appellant in the earlier Execution Application had withdrawn the said application by stating that he does not wish to proceed with the execution and the same be dismissed and that he shall file a fresh Execution Application, if required; and thus, earlier execution filed by the appellant was dismissed as withdrawn vide Ex. D4 and therefore, the factum of delivery of possession of the suit land to the plaintiff-appellant in execution of the earlier Civil Court decree is not established. Moreover, there is nothing on record to establish as to on which specific date the defendant had again taken possession of the land in dispute. The pleadings and evidence in this regard on behalf of the appellant is totally silent. Whereas, it is the specific case of the respondent that Dhariwal Rest House had been constructed in the suit land in the year 1912 by the defendant-respondent and the same is still in possession of the respondent. Thus, the plaintiff-appellant has failed to prove that any fresh cause of action had arisen in its favour. The dispute in question in the present case between the parties has been decided by Civil Court in a previous judgment which has become final, thus the present suit of the appellant is barred by the principle of res-judicata and the appellant has no fresh cause of action to seek possession of the suit land.
At this stage, it may further be noticed that though learned counsel for the appellant has raised an argument to the effect that the respondent has failed to submit reply to the notice served u/s 80 CPC and therefore, an adverse inference may be drawn against the respondent; however, the aforesaid plea has remained unsubstantiated, as it could not be argued before this Court that issuance of notice in the instant case was mandatory.
In view thereof, this Court finds no merit in this appeal as the substantial questions of law, as raised, do not arise at all therein.
Dismissed.