SANT KAUR Vs. TEHAL SINGH

JUDGEMENT

(1.) FACTS. S/smt. Sant Kaur widow of Balaka Singh, Gurmet Sudhar Kaur, Gur Akbar Akal Kaur and Gur Parverdigar Kaur daughters of Balaka Singh owned agricultural land measuring 135 Kanals-16 Marias in the area of village Kumbar Majra, Tehsil Thanesar, District Kurukshetra according to jamabandi 1970-71 as also for the year 1975-76. Gurjodh Singh was their Mukhtiar-i-am.

(2.) GURJODH Singh inducted Tehal Singh, Santokh Singh, Karnail Singh and Darshan Singh sons of Vir Singh as tenants on the suit land on l/3rd Batai. They cultivated the land from Kharif 1971 to Rabi 1972. Since, the relations between Gurjodh Singh and these tenants were cordial, they delivered possession of the land to Gurjodh Singh back in Kharif 1972 whereafter it was cultivated by him on behalf of the owners upto Rabi 1974. During this period of two years Gurjodh Singh constructed houses, kothas and cattle-shed on this land. But the Patwari halqa did not correct the entries in the Khasra girdawari. An application for correction of such entries was filed before the Assistant Collector (Tehsildar) 2nd grade, Thanesar on 7. 11. 1974. It was decided in favour of the owners on 31. 12. 1975 and correction in khasra girdawari entries from Kharif 1972 to Rabi 1974 was ordered and this was effected vide rapat No. 207 dated 15. 2. 1976 by the Patwari Halqa. The defendant filed an appeal against the said order dated 31. 12. 1975 of the Assistant Collector (Tehsildar) Second Grade, Thanesar before the Collector, Kurukshetra who dismissed the same on 20. 8. 1976 and this litigation ended there. The defendants instituted Civil Suit No. 518/1974 for permanent injunction on 21. 10. 1974 and obtained ad interim injunction restraining the owners from interfering in their possession. Gurjodh Singh made a statement that the owners will take possession in due course of law. There -upon the suit of the defendants was decreed on 29. 7. 1977 accordingly. Gurjodh Singh executed three separate agreements to sell the land in question in favour of defendants No. 1-4 on 2. 9. 1974 for a sale consideration of Rs. 46,828/- each vide two agreements and Rs. 23,414/- vide third agreement total amounting to Rs. 17070/ -. He received earnest money of Rs. 4000/-each in two agreements and Rs. 2,000/- under the third one. It is pertinent to notice here that in none of the three agreements to sell it was shown as to in whose possession the land was and how the possession would be transferred to the proposed vendees. Owner-plaintiffs filed Civil Suit No. 527/1976 on 27. 11. 1976 against the defendants for the decree of permanent injunction restraining the defendants from interfering in their possession in respect of the house in question except portion shown read in the site plan attached to the plaint. This suit was decreed on 2. 5. 1978. Certified copy of the judgment is Exhibit P12. Defendants preferred an appeal which was dismissed by the 1st Appellate Court on 2. 8. 1979. Certified copy of the judgment is Exhibit PI (page 91 ). The defendants preferred Regular Second Appeal which was dismissed on 15. 5. 1980. Copy of the judgment is Exhibit P18. Regarding the portion of the house of which the defendants had taken forcible possession, the plaintiff filed Civil Suit No. 263 on 6. 2. 1975 which was decreed on 30. 7. 1979. Certified copy of the judgment is Exhibit P9. The defendants filed an appeal which was dismissed by the Addl. District Judge, Kurukshetra vide judgment and decree dated 6. 8. 1988. Certified copy of the judgment is Exhibit P17. The defendants preferred Regular Second Appeal which was dismissed on 31. 12. 1980. Photo copy of the order is Exhibit P-21. Then the owner-plaintiffs filed Civil Suit No. 12/1981 Smt. Sant Kaur and four others v. Tehal Singh and 5 others for a decree for possession regarding the land on the ground that the defendants had taken possession thereof forcibly. It was dismissed by the trial court on 16. 10. 1981. The plaintiff-appellants preferred Civil Appeal No. 158/13 of 1981 instituted on 13. 11. 1981 which was dismissed by the Additional District Judge (III), Kurukshetra on 11. 3. 1982 which necessitated the filing of the present Regular Second Appeal No. 1292/1982 by the owner-appellants.

(3.) MR. S. C. Mohunta, Senior Advocate appearing on behalf of the appellants has argued that the tenants had handed over the possession of the suit land to Gurjodh Singh in Kharif 1972 and he remained in possession thereof upto Rabi 1974. During this period, he had constructed houses, Kothas and cattle-sheds thereupon. Since, Khasra girdawari continued in favour of the tenants, these, an the application on behalf of the owners, were directed to be corrected by the Assistant Collector,, 2nd Grade, Thanesar vide his order December 31,1975. The tenants had preferred an appeal which was dismissed by the Collector, Kurukshetra vide his order dated 20. 8. 1976. The tenants did not challenge the said order of the Collector, which became final between the parties. The tenants having taken forcible possession of a part of the house, the owners had filed suit for permanent injunction against the tenants for getting them restrained from interfering the possession of the portion of the house which was still under possession of the owners. They had also filed suit against the defendants for obtaining possession of the portion of the house from which they had been forcibly dispossessed. Both the suits were decreed. But the suit of the plaintiff for possession of the agricultural land was illegally dismissed by the learned trial Court even after having come to the conclusion in Civil Suit No. 263 of 6. 2. 1975 vide judgment and decree dated 30. 7. 1979 (certified copy Ex. P-9) to the effect that the defendants had dispossessed the plaintiff forcibly from the said house. He did not consider the fact that the plaintiff had been dispossessed by the defendants from the house as well as the agricultural land, which is the subject matter of this suit, in one and the same transaction. Thus, the learned Courts below have misread and misconstrued the evidence. The above mentioned findings of the Courts below to the effect that the defendants had forcibly dispossessed the plaintiff from the property in dispute, was res judicata as the agricultural land which is the subject matter of this suit was directly and substantially in issue in the previous suit.