MADAN PAL SINGH Vs. ASHOK KUMAR AND OTHERS

JUDGEMENT

(1.) As identical factual matrix is involved, therefore, I propose to dispose of above indicated two appeals, by virtue of this common judgment, in order to avoid the repetition. Moreover, since the Courts below duly recapitulated and described the compendium of the pleadings and evidence brought on record by the parties in detail, so, there appears to be no necessity to again reproduce and repeat the same in the instant regular second appeals. However, the facts have been extracted from RSA No.4519 of 2009 titled as Madan Pal Singh v. Ashok Kumar and others, for ready reference in this context.

(2.) The crux of the facts, culminating in the commencement, relevant for deciding the present appeals and emanating from the record, is that Dhian Singh son of Parwara (since deceased), now being represented by his LRs contesting respondents No.1 to 5 (for brevity the original plaintiff) filed the suit for himself and in a representative capacity on behalf of all other co-mortgagors, under Order 1 Rule 8 CPC and sought a decree for declaration to the effect that the collusive judgment and decree dated 18.7.1992 (Ex.P7) passed in civil suit bearing No.71 of 1992 titled as Om Parkash etc. v. Telu etc. by the Sub Judge, Ist Class, Kaithal, are illegal, null, void and not binding on their rights. The original plaintiff and other co-mortgagors continued to be its owners and the impugned decree does not clothe the defendant Nos.1 to 38 with its ownership, with a consequential relief of permanent injunction, restraining them (Om Parkash etc. respondent-defendant Nos.1 to 38) (for short the ''contesting defendants'') from alienating the suit land in any manner.

(3.) The case set up by the original plaintiff, in brief in so far as relevant, was that he alongwith other co-mortgagors (defendant Nos.39 & 40) and other cosharers are the owners of big chunk of the land, including the land in dispute. Their predecessors-in-in-terest were stated to have mortgaged the suit land in favour of predecessors-in-interest of the contesting defendants. It was claimed that defendant Nos.1 to 35 earlier filed civil suit bearing No. 1264 of 1990 titled as Janak Singh etc. v. Telu in the Court of Civil Judge, Kaithal, seeking the relief of declaration to the effect that the plaintiffs were mortgagees with possession of the land in question, which had not been redeemed within the prescribed period of 30 years and as such, they had become its owners and in possession, by way of prescription, in a representative capacity, without complying with the mandatory provisions of Order 1 Rule 8 CPC. As soon as, the plaintiffs and other similarly situated persons came to know about the pendency of the suit secretly filed by the contesting defendants, they moved an application for impleading them as parties in that suit as their interest had not been watched properly by Telu. In that eventuality, the contesting defendants got the earlier suit filed by Janak Singh etc. dismissed under Order 9 Rule 8 CPC, by virtue of order dated 28.11.1991 (Ex.P6), which had attained the finality.