MANJU Vs. ALLAH DIA AND ANOTHER

JUDGEMENT

(1.) THIS is a defendant's appeal against a concurrent decision of two courts below. Allah Dia and another, respondents, filed a suit against the appellant with the allegations that they were proprietors and Khewatdars having rights in the shamilat deh of the village and in the capacity of co -sharers, they have been in exclusive possession of the suit land, measuring' 13 Kanals (sic) 11 Marlas, as detailed in the plaint. It was further alleged that the (sic) respondents obtained allotment of land in lieu of their share in the land during consolidation proceedings, and had taken possession (sic) said land. However, the appellant took forcible possession of (sic) sometime before the filing of the suit, i.e., on or about April (sic). The respondents, therefore, prayed for a decree for possession (sic) property. The suit was resisted by the appellant, who asserted that the respondents had never been in possession of the suit land. He also raised certain other technical objections to the maintainability of the suit. The necessary issues were framed in the case by the trial court, and after considering the evidence produced by both the parties, the trial court decreed the suit of the respondents. The appellant preferred an appeal which was heard by the Senior Subordinate Judge, Ambala, but the same was dismissed, and hence the present second appeal.

(2.) MR . Amrit Lal Jain, Learned Counsel for the appellant has contended that the findings of the courts below in regard to the issues framed, were not correct. The Learned Counsel has invited the attention of this Court to the document Exhibit 'D' which is a copy of the order of Collector, Ambala, passed in proceedings relating to the recording of Khasra Girdawri of the land. It is urged that according to the said document, it was the appellant who was found to be in possession of the suit land at the relevant time. The document, however, does not make the case of the appellant any better In fast, it is only after the respondents failed to get relief, from the Revenue Authorities, that they approached the civil court and in these proceedings, they have challenged the findings recorded by the Revenue Authorities The Learned Counsel for the appellant goes to the extent of urging that the finding of the Revenue Court in regard to possession, could not be challenged in a civil suit and for this purpose, reliance is sought to be placed upon certain observations in Ram Sarup v. Bam Chander : A.I.R. 1976 P&H. 246. In the said authority, all that was held was, that the decision of a court of special jurisdiction (Revenue Court) will be res judicata in a court of general jurisdiction (Civil Court) provided the decision of the court of special jurisdiction was within the jurisdiction of that court. In the case in hand, the order sought to be relied upon by the appellant was passed by the Collector not in his capacity of a Revenue Court as was in Ram Sarup's case (supra), wherein the former suit was decked by the Sub -Divisional Officer (Civil), while acting under the Punjab Tenancy Act. The mere determination of the question of possession for the purpose of recording Khasra Girdawri cannot be termed to be a decision of a Revenue Court, which in turn would be res judicata in a civil suit filed, essentially with a view to impugn the said order. The contention of the Learned Counsel must, therefore, be replied. The Learned Counsel for the appellant has also referred to a copy of the judgment of this Court Exhibit P. 13 in a Criminal Revision and from the observations in the said copy, he seeks to contend that the question of possession was also considered by the court. Again a decision in a criminal case would not be binding in a civil suit. The material circumstance which clinches the whole matter, in so far as the present case is concerned, is that the consolidation Authorities had allotted the disputed land to the respondents in lieu of their share in the shamilat land, and its allotment had admittedly been never challenged by the appellant at any stage. It is also in evidence that the respondents obtain -possession of the land, allotted to them during consolidation proceeds. This being so, their ownership and possession of the land became or all intents and purposes. In any case, there being a pure finding fact by two courts below that the respondents are entitled to take possession of the disputed property from which they were forcibly dispossessed, there is no occasion or case made out to interfere with the said finding in the second appeal.