KRISHAN CHAND Vs. DAROPTI

JUDGEMENT

(1.) SMT . Dropti and others filed suit for possession of 2 marlas of land bearing khasra No. 55 khewat/khatauni No. 14/27 situated in village Sukhdaspur, Tehsil Jagadhari against Krishan Chand and Tara Chand on the allegations, that Surat Singh was the owner of the land. Smt. Dropti is his wife while Mam Chand, Sham Lal and Karam Chand are his sons. It was encroached upon by the defendants. They prayed for possession after demolition of construction raised thereon. Another bara No. 56 belongs to defendants situated adjoining to the suit property towards east. Mam Chand son of Surat Singh filed suit for permanent injunction against the defendants previously. Shri B. Diwakar, Sub Judge, Jagadhari granted stay against the defendants restraining them from interfering in their actual and physical possession. They were also restrained from raising any construction in the suit property. In that suit, defendants and their counsel made statement that they had no concern with the suit land i.e. khasra No. 55 which belongs to the plaintiff. Suit was dismissed as infructuous in view of that statement. Despite that order and in the absence of the plaintiffs, defendants wrongly and illegally encroached two marlas of land of khasra No. 55 which was in possession of the plaintiffs. They also raised some construction in the encroached portion. It was alleged in that plaint that defendants had no concern with the property in suit. They had no right to encroach upon khasra No. 55. Plaintiffs got demarcation through revenue officials in the presence of the defendants. On demarcation, it was found that 2 marlas of land of khasra No. 55 had been encroached upon by the defendants and included in khasra No. 56 belonging to the defendants. Defendants contested the suit urging that plaintiffs are neither owner nor in possession of the property in dispute bearing khasra No. 55. Previously filed suit for permanent injunction by Surat Singh was dismissed on 6.6.88 by Sub Jude, Jagadhari. Surat Singh is still alive. Plaintiffs are not legally entitled to file this suit for possession nor they have locus standi to file the suit. Bara No. 56 belongs to Krishan Chand defendant No. 1 who is owner in possession thereof. It was denied that plaintiffs were in possession of Khasra No. 55. Defendant Krishan Chand got demarcation of land bearing khasra No. 56 on 20.5.81. After demarcation had been obtained, the defendant forced and raised kotha in his own share of khasra No. 56. After dismissal of the previous suit, he completed that room and roof was put up. It was denied that the defendants have encroached any portion of khasra No. 55 or that they are in possession of any portion of khasra No. 55. It was denied that the defendants ever got demarcation in the presence of the defendants as no notice was give to them by the revenue officials who allegedly gave demarcation. On these pleadings of the parties, the following issues were framed :-

(2.) VIDE order dated 14.1.97, Civil Judge (Junior Division), Jagadhari decreed the plaintiff's suit for possession of 2 marlas of land out of khasra No. 55 which has been encroached upon by the defendants in view of her finding that they have encroached upon 2 marlas of land out of khasra No. 55 belonging to the plaintiffs illegally.

(3.) IT has been submitted by the learned counsel for the appellants (defendants) that this suit is barred under Order 2 Rule 2(2) and (3) CPC. Surat Singh respondent previously filed suit for permanent injunction against the appellants restraining them from interfering in his possession over bara banjar Karim measuring 19 marlas comprising khewat khatauni No. 14/27 khasra No. 55 situated in village Sukhdaspur, Teshil Jagadhari, District Ambala Hadbast No. 442 vide jamabandi for the year 1981-82. Appellants filed written statement to that suit on 17.2.88 pleading that they had raised construction of one pucca kotha in their own land bearing khasra No. 56 prior to the filing of the suit and only roof of the said kotha remains to be constructed. It was also pleaded that the appellants have no concern whatsoever with the land of the respondents bearing khasra No. 55. On 6.6.88, the trial Court recorded the statements of the appellants. In view of the statements made by the appellants in that suit, that suit was dismissed as infructuous. Respondents did not make any prayer for demolition of the pucca kohta nor amended their suit asking for demolition of the pucca kotha. They filed fresh suit for possession of 2 marlas of land comprising khewat Khatauni No. 14/27 khasra No. 55 encroached upon by the defendants wrongly and illegally in the absence of the plaintiffs by demolishing any type of construction or structure over there. It was submitted that the question of maintainability of this suit was specifically raised in the written statement. Issue was framed regarding the maintainability of the suit. It was wrongly held by both the courts below that the suit for possession was maintainable. It was submitted that suit for possession was barred by the provisions of Order 2 Rule 2(2) and (3) CPC. It was submitted that on the same cause of action, the defendants cannot be vexed twice by two separate suits. Surat Singh did not seek amendment of the plaint nor did he seek the permission of the court to institute fresh suit. Subsequent suit was hit by the provisions of Order 2 Rule 2 CPC.