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Judgment
M.S. Liberhan, J.—Mohan Singh filed suit No. 373 of 1965, seeking permanent injunction restraining Municipal Committee, Jullundur and Punjab Wakf Board, from interfering in use of plot bearing Khasra Nos. 6508 and 6509, in his possession as tenat under the Punjab Wakf Board and further challenged the notice u/s 173 of the Punjab Municipal Act dated 31.1.1965, asking Mohan Singh for removal of the encroachment from the public street. Mohan Singh denied it to be a public street and claimed it to be part of Khasra Nos. 6508 and 6509. The suit was contested by the Municipal Committee only.
Amar Singh filed another suit No. 413 of 1965 seeking mandatory injunction against the Municipal Committee to restore the public street and against Mohan Singh and Sohinder Singh, for removal of the encroachment made by them by putting their Khokhas on the public street. It was further claimed that a building plan was senctioned by the Municipal Committee but the construction was not possible for want of free access because of encroachment by them.
In fact Mohan Singh''s defence in the suit, was the same as was his claim in suit No. 373 of 1965, i.e., Mohan Singh claimed to be in possession of suit property which was part of grave-yard constituted of Khasra Nos. 6508 and 6509.
Both the suits were consolidated and tried together and the following issues were framed:-
(1) Whether the land in suit belongs to the Punjab Wakf Board and the plaintiff is the lessee of the same? (OP.P.)
(2) Whether the land in suit is a public street as alleged? (O.P. Municipal Committee and Amar Singh plaintiff in the connected case).
(3) Whether Amar Singh plaintiff had paid proper Court Fee? (O.P. Amar Singh).
(4) Whether the defendants are entitled to special costs, if so, to what amount ? (O.P. defendants of both the suits).
(5) Relief.
The suits were decided on 23.8.1966 against Mohan Singh on whose appeal, both the cases were remanded to the trial Court with a direction to appoint a local commissioner for demarcation of Khasra Nos. 6508 and 6509. The local commissioner was required to prepare a site plan showing various houses.
On remand, the learned trial Court returned a finding that the land in suits belonged to the Punjab Wakf Board and it did not form past of the public street. Consequently, the suit of Mohan Singh was decreed for permanent injunction restraining the Municipal Committee from interfering in use and enjoyment of the land in dispute forming part of plot bearing Khasra Nos. 6508 and 6509. Vide the same judgment, the suit of Amar Singh was dismissed. Against the said judgment, two appeals, were preferred by Amar Singh against the dismissal of his suit and decreeing the suit of Mohan Singh. Municipal Committee also challenged the judgment and decree through appeal.
The lower appellate Court, after appreciating the documentary as well as oral evidence, for the reasons recorded therein, came to the conclusion that Mohan Singh was in illegal occupation of area towards North of his two Khokhas and had illegally placed scrap truck, car and chasis in the area which did not belong to him. Amar Singh through his suit No. 413 of 1965 had sought the removal of these obstruction by Mohan Singh. Consequently, Amar Singh''s suit was partially decreed i.e. the encroachments marked 1 & 2 in plan Exhibit X, were to remain there. Actually obstruction marked ''1'' was that of Sohinder Singh, but it would fall within Khasra No. 6508, which had been taken on rent by Mohan Singh. So, this matter was to be settled between Punjab Wakf Board and Mohan Singh on one side and Sohinder Singh on the other So far as obstruction No. 2 in Exhibit X, was concerned; there was already civil litigation about this land and the matter had been finally set at rest and the Municipal Committee had been restrained from removing this encroachment.
The lower appellate Court further held in Mohan Singh suit No. 373 of 1965, as discussed in the main judgment, that area of the plot marked red was more then 10 marlas. So he was to remove his encroachment shown as scrap iii) truck (iv) car (v) and chasis (vi) in Exhibit X. The Municipal Committee was at liberty to carve out a public street keening intact the Khokha shown as mark (ii) in the plan Exhibit X. The suit to this extent was dismissed. In view of the above findings, the appeals filed by Amar Singh No. 241 of 1977 and 247 of 1977 with respect to the removal of encroachment were partially allowed and the appeal of Municipal Committee regarding removal of wooden Khokhas of Mohan Singh lying along the wall of Chatar Singh on the Eastern side was dismissed.
The Municipal Committee as well as Mohan Singh challenged the judgment of the lower appellate Court in suit No. 373 of 1965 by two separate appeals while judgment in suit No. 413 of 1965 filed by Amar Singh was not challenged, though same findings on these issues inter se the parties were recorded. Consequently, findings on all the issues became final inter se the parties.
Since both the suits were disposed of by a common judgment, and in case the judgment in suit No. 373 of 1965, is set aside, it will give rise to two contradictory judgment and decrees between the same parties on the same issues which is not permissible in view of section 11 of the Code of Civil Procedure. Thus the judgment and decree rendered in suit No. 413 of 1965, as modified in Civil Appeals No. 244 and 247 of 1977, shall operate as res judicata inter se the parties. Since the Municipal Committee did not challenge the findings in suit No. 413 of 1965, it cannot challenge the same finding in suit No. 373 of 1965 between the same parties. The Municipal Committee is estopped from challenging the findings accepted by them. The learned counsel could neither controvert the facts nor pointed out any error.
I find no force in this appeal and the same is dismissed with no order as to costs.