- (1.) THIS is defendants' second appeal challenging the judgments and decrees of the Courts, whereby the suit filed by the plaintiffs was decreed by the trial Court vide judgment and decree dated 9.11.2005 and the appeal against the aforesaid judgment and decree of the trial Court was dismissed by the lower Appellate Court vide judgment and decree dated 16.9.2009.
(2.) THE brief facts of the case are that the plaintiffrespondent Lt. Col. Harbans Singh purchased land in Village Daulatpur out of khasra No.109 from Thakur Kesho Dass measuring 4 kanals vide sale deed dated 11.3.1956. Vide another sale deed dated 19.4.1956, he purchased another plot 4 kanals out of same khasra number from the same vendor. After the sale, he was put in possession of the property. The mutation was sanctioned and khasra No.109/3/1 measuring 4 kanals was carved out. Similarly, vide another mutation, another Khasra No.109/3/2 was carved out. Harbans Singh died on 19.10.1993. Property was inherited by the plaintiff Parminder Singh. Now, the total property bears khasra No.329 measuring 8 kanals. The defendants were interfering in the peaceful possession of the plaintiff. So, he filed a civil suit for permanent injunction having No.368/85, which was decided on 26.10.1987. In that suit, the defendants admitted the plaintiff to be in exclusive possession as owner. They made statement that they will not dispossess him except in due course of law. There was specific issue in that case regarding which the findings were returned in favour of plaintiff no.1. Now, these findings have not been challenged by the defendant -appellants. So, they have become final. Now, defendants are alleging that there is mutation No.1476 sanctioned in favour of defendant no.1 and that they have become owners as per the jamabandi. The mutation is illegal, null and void. The defendants allege that there is some notification issue qua the land in dispute. At the time of the previous owner, no notification was ever issued to Kesho Ram. No compensation has either been tendered or paid to the plaintiff. Now, the defendants are out to interfere in the property of the plaintiffs to which they have no right. Upon notice, defendants appeared and filed written statement contesting the suit, raising various preliminary objections. On merits, they denied that the suit land was owned by the plaintiffs. It was stated that the suit land has been acquired vide notification dated 2.7.1959 for construction of I.T.I., Pathankot. It was further averred that objections were invited from owners and the government had paid compensation for the land acquired to the owners after completing all the formalities and if the plaintiffs were having any right in the same, then they should have raised objections and thus, now they cannot agitate the matter, as the land has been acquired. It was further stated that mutation has also been sanctioned in their favour.
(3.) ON the basis of pleadings of the parties, following issues were framed: - "1. Whether the plaintiffs are entitled to the relief of declaration as prayed for? OPP 2. Whether the suit is not maintainable in the present form? OPD. 3. Whether the notice u/s 80 CPC is not legal and valid? OPD 4. Whether the plaintiffs have no cause of action to file the present suit? OPD 5. Relief." After hearing counsel for the parties and going through the record, the trial Court decreed the suit holding that the plaintiffs were owners in possession of the suit property and the entry in the revenue record showing provincial Government to be the owner and ITI College being in possession of the suit land, was incorrect. Aggrieved from the aforesaid judgment and decree of the trial Court, the defendants preferred an appeal before the first Appellate Court which was dismissed vide judgment and decree dated 16.9.2009. While dismissing the appeal, the lower Appellate Court observed as under: - "After going through the record and considering the arguments, I find that in the Notification regarding the acquisition of the land, there in no mention of Khasra No.109/3/1 and 109/3/2. Khasra No.109 has been mentioned. It is further clear that both these khasra numbers have been changed into khasra No.329. The other stand has been taken by the appellants -defendants that the land was donated by Kesho Ram but there is no record of the same. Now, I find that in the previous suit, the plaintiff was held to be co -owner in possession of the suit -property. That finding has not been challenged and the same has attained finality. Moreover, there is nothing on the record to show that the possession has been taken by the appellants from the respondents in due course of law. As per this technical reason, the plaintiff is still co -owner in joint possession of the property. The land has been acquired in Khasra No. 109 but the present suit -land falls in khasra No.109/3/1 and 3/2 and a new khasra number 329 has been carved out. It is clear that when the possession is taken then there is report in the Roznamcha of the Patwari. No roznamcha has been proved on the file. Accordingly, there is nothing on the record to show that property in dispute was ever acquired by the appellants -defendants. So once it is proved that the property was never acquired, so there is no question of any mutation in their favour. Accordingly, I find that entries in the Jamabandi repeated by mistake. The reliance can be placed on with the title Pawan Kumar Gupta Vs. Rochiram Nagdeo, 1999 AIR(SC) 1823. wherein it was held as under: - "Civil Procedure Code (5 of 1908). S.11 - Resjudicata - Dismissal of earlier suit on account of extinguishment of cause of action or any other similar cause - Decision made in said suit on vital issue involved there in - Operate as resjudicata in subsequent suit between same parties -Fact that defendant did not file appeal against said decision - Cannot avert the bar of resjudicata".;