AJAY KUMAR MITTAL, J. - (1.) THIS order will dispose of Regular Second Appeal Nos. 5729, 5862 and 5912 of 2003 as a common question of law and fact is involved in all these appeals. The facts have been taken from RSA No. 5729 of 2003 which are as under : The plaintiffs who are the proprietors of village Barhi, Tehsil and District Karnal claim themselves to be owners of the suit land and filed a suit for possession. It was stated that the suit land was washed away by river action and when the same was restored it came to be recorded in the revenue record as shamlat land. It was averred that the suit land has been in possession of the defendant as trespasser and the defendant has never paid any batai or rent to the plaintiffs or any other co-sharers. It was further stated that the defendant along with others filed a suit (suit No. 612 of 1992) for permanent injunction against the plaintiffs and others regarding the suit land which was dismissed by the trial court by judgment and decree dated 30.3.96 holding that the present defendant was a trespasser on the suit land. Even the appeal filed against the said judgment was dismissed by the District Judge, Karnal vide judgment and decree dated 4.2.97 affirming the finding of the trial court that the defendant was a trespasser in the suit land and also holding that he was liable to be ejected therefrom. The defendant in his written statement, however, denied and controverted the pleas raised by the plaintiffs.
(2.) THE contesting issues on which the trial proceeded were as under : 1. Whether the plaintiffs along with other co-sharers are owners of the agricultural land mentioned in para No. 1 of the plaint ? OPP 2. Whether the suit land is in possession of the defendant as a trespasser ? OPP 3. Whether the defendant along with some others filed a civil suit No. 612/92 titled as Harsarup and others v. Bimla Devi and others ? OPP The trial court took up all these issues together and decided the same in favour of the plaintiffs and against the defendant. A decree for possession in respect of the suit land was thus passed in favour of the plaintiffs directing the defendant to hand over the vacant possession thereof to them. On appeal by the defendant, the first appellate court modified the decree of the trial court observing as under : "Thus taking the plea of the appellant to be co-sharer in the suit land, he is held not to be a trespasser over the suit land but he is held to be a co- sharer and he cannot be dispossessed except in due course of law i.e. after getting the joint land partitioned among the co-sharers. With this observations this appeal is partly allowed and suit of the plaintiffs/respondents is partly decreed to the extent that they can take possession of the suit land from the appellant/defendant in due course of law only i.e. after getting the joint land partitioned among the co-sharers because the latter is also proved himself to be co-sharer in the suit land."
(3.) THIS is how the plaintiffs have preferred the present appeal. Learned counsel for the appellants submitted that the first appellate court erred in reversing the finding of the trial court that the defendant was a trespasser in the suit land. Learned counsel further submitted that in the previous suit it had clearly been held that the defendant was a trespasser in the suit land which judgment and decree was affirmed on appeal as well. Counsel for the respondents on the other hand supported the judgment and decree of the first appellate court and placed reliance on a judgment of the Supreme Court in Gram Panchayat of Village Naulakha v. Ujagar Singh and others, 2000(4) RCR(Civil) 749 : AIR 2000 Supreme Court 3272 to contend that the finding given by the civil court regarding the earlier suit is not binding on the defendant and would not operate as res judicata as the same had been recorded incidentally in the earlier suit which was simplicitor a suit for permanent injunction. The contention in other words is that in a suit for permanent injunction any incidental finding given regarding title to the property was not binding on the parties.;