PERMOD KOHLI, J. - (1.) ON hearing the learned counsel for the parties, I am of the opinion that following substantial questions of law are involved in the present Regular Second Appeal for consideration of this Court :- A. Whether doctrine of res judicata is applicable where the defendant in earlier suit has taken no defence and suffered an ex parte decree ? B. Whether suit simpliciter for injunction against the alleged co- sharer in exclusive possession is maintainable ?
(2.) THIS is plaintiff's Regular Second Appeal against the judgment and decree dated 12.3.1984 passed in Civil Appeal No. 137 of 1982 by the Additional District Judge, Jullundur, allowing the appeal of defendant-respondent against the judgment and decree dated 3.5.1982 passed by Sub Judge Ist Class, Jullundur. As a consequence, suit of the plaintiff-appellant has been dismissed. The dispute in this Regular Second Appeal relates to succession in respect to property of one Kunda Singh @ Kundan Singh who died in the year 1940, leaving behind two daughters, namely, Rattni and Bachani. Plaintiff-Kishan Singh and defendant-Sucha Singh are admittedly sons of Kunda Singh's real uncle. From the pedigree table, it appears that one Harnam Singh had six sons, namely, Gundu, Jhagru, Chetu, Lalu, Narain Singh and Chandu. Gundu and Lalu died issueless. Kunda Singh was son of Narain Singh, whereas plaintiff-Kishan Singh is son of Jhagru and Sucha Singh is son of Chetu. After the death of Kunda Singh, his two daughters came into possession of the land measuring 188 kanals comprised in various khasra numbers, as detailed in the plaint. Sucha Singh, present defendant/respondent filed Civil Suit No. 529 of 1968 against Smt. Rattni wife of Tara Singh, Smt. Bachani wife of Shanker Singh, Smt. Ram Kaur wife of Labhu, Smt. Amar Kaur @ Bibi daughter of Pal Singh @ Pala, Kishan Singh son of Jhagru (the present plaintiff) and Labhu son of Chet Singh, in the Court of Sub Judge II Class, Nakodar, claiming that the daughters of Kunda Singh has no right over the property of Kunda Singh, same being coparcenary and ancestral property and revert back to the male members who are agnates. Kishan Singh, plaintiff/appellant herein, though impleaded as one of the defendants in the said suit, chose not to appear and was proceeded ex parte. The said suit of Sucha Singh-defendant/respondent herein was decreed in his favour vide judgment and decree dated 17.12.1971. It is pertinent to mention here Rattni and Bachani challenged the judgment and decree dated 17.12.1971 in appeal which was compromised. Kishan Singh, plaintiff/appellant herein, did not file any appeal against the judgment and decree passed in favour of Sucha Singh, the present defendant/respondent. On the basis of compromise, Sucha Singh was put in possession of the land which was earlier held by Rattni and Bachani, after death of Kunda Singh and is enjoying the possession of the same.
(3.) PRESENT suit has been filed by plaintiff/appellant Kishan Singh for permanent injunction restraining defendant/respondent-Sucha Singh from selling or disposing of the land in any manner. Plaintiff claimed to be the reversioner of Kunda Singh in equal share with Sucha Singh. The suit of the plaintiff has been resisted by Sucha Singh-defendant on variety of grounds : (1) The suit is barred by doctrine of res judicata, in view of the judgment and decree dated 17.12.1971 passed in earlier suit wherein plaintiff-Kishan Singh was also a party; (2) Kishan Singh is not possession of the land for the last 40 years and is not entitled to any relief; (3) Plaintiff is estopped from seeking any relief as Sucha Singh-defendant is enjoying the property which is in the knowledge of the plaintiff and without any objection being raised by him, the suit is not maintainable. The trial Court framed following issues :- 1. Whether the plaintiff is in possession of the land in dispute and suit for permanent injunction is maintainable ? OPP 2. Whether the plaintiff is owner and has locus standi to file the present suit ? OPP 3. Whether the land in dispute is co-parcenary property ? If so, its effect ? OPP 4. Whether any decree passed is binding on the plaintiff ? OPD 5. Whether the matter covered by issue Nos. 1, 2, 3 and 4 is barred by principle of res judicata ? OPD 6. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for ? OPD 7. Whether the plaintiff is estopped by his acts and conduct from filing this suit ? OPD 8. Whether the plaintiff has got any cause of action to file the present suit ? OPD 9. Whether the plaintiff has lost his right on the basis of acquaisance, long delay ? OPD 10. Relief. Issue Nos. 1 to 5 were taken up together by the trial Court as they were considered to be inter-linked. The trial Court, while considering effect of earlier decision between the parties ruled in favour of the plaintiff, Kishan Singh and held the suit to be maintainable and not hit by the doctrine of res judicata. The trial Court also held that the plaintiff, being reversioner equally placed with Sucha Singh-defendant and the nature of property being ancestral and co-parcenary, is entitled to equal share with Sucha Singh. The trial Court accordingly vide its judgment and decree dated 3.5.1982, decreed the suit for permanent injunction in favour of Kishan Singh, plaintiff and against Sucha Singh-defendant.;