BHAWANI SAHAI Vs. MUSADI LAL AND OTHERS

JUDGEMENT

(1.) Plaintiff Bhawani Sahai filed a suit for declaration, which was dismissed by the Sub Judge, Ist Class, Narnaul vide judgment and decree dated 24.7.1993. In appeal, the said judgment and decree were upheld by the Additional District Judge, Narnaul vide judgment and decree dated 25.4.1996. Hence, the present appeal.

(2.) Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 and 3 of its judgment, are as under:- "2. The case of the plaintiff is that he is in possession of the property in dispute situated on the Rewari road, Narnaul, bounded to the east by the shop of Champa Devi to the west by the land of Municipal Committee, to the north by the Rewari road and to the south by the land of the Municipal Committee, where he has constructed a tin-shed and is running a hotel and a tea shop since 1.8.1979. It is also the case of the plaintiff that electric connection to the aforesaid shop was obtained in the year 1979 and water connection was also taken in the same year. It is further the case of the plaintiff that the aforesaid property was on the Bazari with him from 1.8.1979 to the year 1981 and that in the month of January, 1982 it was taken on lease by him from the Municipal Committee Narnaul. Two suits bearing Nos.532 of 1982 and 533 of 1982 were filed by Musadi Lal, defendant No.1 against the Municipal Committee, Narnaul. In the said suits, the plaintiff was also impleaded as a defendant but later on he was given up by the plaintiff. The plaintiff filed an application under Order 1 rule 10 CPC for being impleaded as party in those two suits which was also dismissed. The said suits were consolidated and decided by means of judgment dated 18.10.1986. Both the suits were decreed against the Municipal Committee, Narnaul, and Municipal Committee was restrained from interfering into the possession of the plaintiff over the agricultural land measuring 6 biswas comprising khewat No.739, Khatoni No.1224, Khasra No.6063/2033 as mentioned in the jamabandi for the year 1979-80. The Municipal Committee was also directed to remove any obstruction which it had caused in the passage by getting placed khokha or tin-shed of Bhawani Sahai (plaintiff in this case) or anybody else. In execution of the aforesaid judgment and decree dated 18.10.1986 passed in the above two suits the tin shed of the plaintiff is sought to be removed by defendant No.1. In the suit brought by the plaintiff, out of which this appeal has arisen, the plaintiff has prayed for the grant of a decree for declaration that the judgment and decree dated 18.10.1986 passed in the above two suits are null and void and that in execution of the same possession cannot be taken of the property in dispute belonging to the plaintiff. He has also prayed for restraining the defendants from interfering in his possession over the property in dispute on the basis of aforesaid judgment and decree dated 18.10.1996.

(3.) In the written statement filed by defendant Musadi Lal he has controverted the material averments of the plaintiff and has pleaded, inter alia, that the property in dispute was never owned by the Municipal Committee and that its owner was the Provincial Government. He has also pleaded that he is in possession of land measuring 6 biswas comprising khasra No.6063/2033 and that in the year 1982 the plaintiff had tried to cause obstruction in the passage to that land on the ground that he had taken that land on lease from the Muncipal Committee and that he had filed a civil suit which was decreed by the Sub Judge I Class, Narnaul. In the written statement filed by the Municipal Committee, defendant No.2, it was pleaded that a piece of land 10' x 15' was given to the plaintiff on the Bazari the possession of which was taken by him on 17.8.1982 and that he had taken the site in dispute measuring 30' x 10' on 28.1.1982 on the basis of a rent note. It was also stated that the site in dispute was a part of khasra No.6063/2033 which was owned by the Provincial Government and has now vested in the Municipal Committee and that Musadi Lal defendant has no right or interest in the same." On the pleadings of the parties, following issues were framed by the trial Court:- 1. Whether the judgment and decree dated 18.10.1986 passed in civil suit No.345 of 7.11.1984, 532 of 30.4.1982 and civil suit No.533 of 1982 are illegal, null and void and liable to be set aside and not binding on the rights of the plaintiff OPP 2. Whether the plaintiff is entitled to the relief of injunction on the ground mentioned in the plaint OPP 3. Whether the plaintiff has no locus standi to file the present suit OPD 4. Whether the suit is not maintainable OPD 5. Whether the suit is barred by the principle of res-judicata OPD 6. Whether the suit is barred by Section 47 CPC OPD 7. Whether the defendants are entitled to special costs under Section 35-A CPC OPD 8. Relief.