DAVINDER LAL Vs. JASWINDER SINGH AND OTHERS

JUDGEMENT

(1.) Cm No. 2177 C of 2014

(2.) There was reversal of array of parties when the previous defendant against whom the suit for injunction brought by the 1st defendant failed when he brought a suit for correction of khasra girdawari making reference to the 1st defendant as party in possession, when from the year 1964 onwards the defendants No. 2 to 8 alone had been shown as mortgagees in possession. The plaintiff was the purchaser from the defendants 2 to 8 and, therefore, the plaintiff claimed that he was entitled to the consequential relief of injunction from in any manner interfering in his possession. The suit was decreed and the Appellate Court also confirmed the judgment.

(3.) The defendant has filed the appeal to contend that the dismissal of his suit upto the High Court was only on the issue of maintainability and, therefore, the finding regarding the point that he was not in possession and the mortgagees were in possession was not binding on him and the earlier decision will not constitute a res judicata against him. The counsel would refer me to a Division Bench ruling of this court in Amar Nath v. The Financial Commissioner, Taxation, Punjab and others, 1978 PunLJ 408 that held that if the civil court had no jurisdiction to entertain the suit, any finding on any other matter in the judgment will not be binding. To the same effect was the another case cited by the counsel of the Supreme Court, namely, Chandrabhai K. Bhoir and others v. Krishna Arjun Bhoir and others, 2009 2 SCC 315 that held that an order passed without jurisdiction would be a nullity. I must observe that reliance on the above two judgments is wholly unjustified. It is one thing to state that the civil court had no jurisdiction but quite another when the court finds that it had the jurisdiction to decide all the issues and found inter-alia the frame of the suit as regards non-joinder of a particular party as fatal to the plaintiff's case. In the previous proceedings when the appeal had been filed against the decree in suit for injunction, the Appellate Court was holding that he could not be stated to be in possession to deserve the relief of injunction and was holding that the mortgagees were actually in possession and they had not even been impleaded as a party. The finding rendered by the court was that the present appellant as plaintiff has not proved his possession against the defendant who is present plaintiff and it became final and constituted resjudicata. The dismissal of the appeal by this court by merely adverting to the fact that the suit was not competent cannot be wrongly understood, as it is now understood, to state that the civil court has no jurisdiction. The civil court alone was the competent court of jurisdiction for injunction relief and when it declined to grant the benefit to the appellant in his earlier round, he cannot re-open the case again by making reference to the orders passed by the revenue authorities.