SITA DEVI Vs. HANS RAJ

JUDGEMENT

(1.) THE defendants in the suit are the appellants before this Court. The respondent's suit was for declaration and injunction from interfering with the appellants' possession of the property in khasra No.433//24/1 comprised within specific boundaries belonging to him and for a restraint against the defendants from in any manner interfering with possession or demolishing the wall which he had constructed. The defendants had contended that the plaintiff's vendor Karamjit Singh was also the defendants' own vendor and the plaintiff's vendor had no right to the extent of property conveyed in favour of the plaintiff. The defendants would contend that they had been earlier purchasers of the property in the very same khasra number and there had been four other transactions of sales by Karamjit Singh before the property was sold to the plaintiff. The contention is that the property in khasra No.24/1 had comprised of only 5 kanals 5 marlas and the vendor Karamjit had exhausted by sales of the property except for extent of 3 marals and the alleged sale in favour of the plaintiff of the extent mentioned could not have, therefore, lawfully conveyed any right in the property.

(2.) THE defendants are the appellants before this Court as husband and wife. It is admitted case that Karamjit had sold 18 marals in khasra No.24/1 to appellant No.1 Sita Devi by registered sale deed dated 30.05.1974. Karamjit Singh had also sold 1 kanal 13 marals of land in khasra No.24/1 to Sita Devi's husband Raj Kumar, who is the second appellant on the same day on 30.05.1974. The sale had been described by boundaries and it refers a rasta on the east. There were two other sales which Karamjit had made in respect of the very same khasra number on 05.06.1974 to Balbir Singh and 17 marlas of land to one Desh Bandhu. The sale deed in favour of Balbir Singh and Desh Bandhu are not before Court but there is a reference to the transactions of sale in Ex.D8 which is copy of the jamabandi that registers the mutations sanctioned with reference to the sales in favour of various purchasers referred to above. The trial Court decreed the suit on the only ground that there had been a sale in respect of the extent mentioned in the suit property but did not make any attempt to reconcile the several extent of properties which the vendor Karamjit had made with reference to the same khasra number and as to how the vendor could have had ownership of the property which he purported to make in favour of the appellant. It would appear that the defendants themselves had earlier filed the suit in respect of the property purchased by them against Karamjit as well as the present plaintiff but for some curious reason, the earlier suit was not taken up along with the suit by the plaintiff. When the defendants' suit was taken up later, the fact of the decree in earlier suit prevailed on the presiding officer to dismiss the suit filed by the defendants. The appeal against the plaintiff's suit also came to be dismsised by the fact that the defendants' suit for injunction had been dismissed. The defendants did not press for adjudication on their own suit for injunction and when the decree in the plaintiff's suit was confirmed, in appeal filed by the defendants, they had brought a challenge to this court by means of present second appeal only the plaintiff's suit for declaration and injunction and they have not preferred any second appeal against the dismissal of their own suit for injunction.

(3.) AT the outset, it was pointed out by the counsel appearing on behalf of the plaintiff that the appeal is barred by res judicata by the dismissal of the defendants' suit, which had been filed earlier, had become final and they were not entitled to contend for position that the plaintiff was not entitled for the property which was decreed. The appellants defendants would, however, contend that their own suit was only for the bare relief of injunction where there was no requirement for an adjudication for title and the dismissal of their suit for injunction would have no bearing for an adjudication on title sought for by the plaintiff where the most crucial issue was whether the plaintiff's vendor Karamjit had any right to convey the property of the extent mentioned there in. This was particularly so on account of the fact that the defendants were earlier purchasers and the right in the property cannot be denied to their disadvantage and without ascertaining whether the vendor had any right to sell the property of the extent mentioned above. The plaintiff had made pointed reference to the fact that plaintiff himself was aware that he had no right to purchase the property of the extent mentioned in the sale deed and therefore had obtained a supplementary document subsequently setting out extent of 11 marlas alone as the property which a vendor could sell and the supplementary sale deed brought on 28.02.1975 Ex.D9 was clear admission of the fact that the plaintiff did not have a title to the property claimed by him. On the respective contentions raised by the parties, the following substantial questions of law have been framed: -