The binding nature of earlier judgments, the implications of mortgage deeds under Section 48 of the Transfer of Property Act, and the requirement to prove possession over the suit property.

JUDGMENT :

LISA GILL, J.

1. This judgment shall dispose of R.S.A No. 2275 of 2004 and 2280 of 2004 as both these appeals arise from judgment and decree dated 13.11.1999, passed by the learned Additional Civil Judge (Sr. Division), Faridabad, as well as judgment and decree dated 13.11.2003, passed by the learned Additional District Judge, Faridabad.

2. Appellants are the plaintiffs in Civil Suit No. 298 of 1990, titled 'Daya Ram (deceased) through his LRs Vs. Bedi @ Bed Ram and others', and the defendants in Civil Suit no. 313 of 1991, titled 'Bed Ram @ Bhool Ram Bedi Vs. Daya Ram (deceased) through his LRs and others'. Both the civil suits were consolidated by the learned trial Court on 29.01.1999.

3. Appellants-Plaintiffs in Civil Suit No. 298 of 1990, sought the relief of permanent injunction for restraining the defendants from interfering in their possession or in raising of construction thereon. It is pleaded that Daya Ram (since deceased) and his predecessors-in-interest were the owners in possession of a plot situated within the Abadi Deh of village Fatehpur Biloch, Tehsil Ballabgarh, District Faridabad as described in the plaint. It is pleaded that the suit property was mortgaged with possession by its owner Suraj Kaur widow of Matru, vide registered mortgage deed dated 15.10.1910 in favour of Harchandi, predecessor-in-interest of the plaintiffs. The successors-in-interest of Suraj Kaur namely Girraj son of Moti Ram, filed a Civil Suit No. 290 of 1982, which was dismissed on 11.10.1985 by the learned Sub Judge Ist Class, Faridabad. It was held in the said suit that the plaintiff become the owner in possession of the plot in question having acquired ownership rights by prescription and lapse of time. Appeal filed by Girraj and others, was dismissed by the learned District Judge, Faridabad. It is further stated that their exists a 'Keekar' tree in the said plot. The plaintiff wish to raise construction therein, but the defendants being head strong persons were bent upon to interfere in the possession and construction sought to be raised by the plaintiff on the plot in question. It is pleaded that the defendants had no right, title or interest to interfere in the possession and construction to be raised by the plaintiff. Despite request, defendants did not desist from their acts. Therefore, the suit was filed.

4. Defendants resisted the suit and in the joint written statement filed by them, various preliminary objections were raised. It is stated that the plaintiff has himself admitted and acknowledged the defendants and their predecessors-in-interest to be the owners in possession of the suit property. Plaintiff, it is claimed in collusion with Girraj instituted a false and frivolous suit with an ulterior motive of obtaining wrongful gain to the prejudice of the defendants. It is stated that the property in dispute originally belonged to Matru son of Ratana, who had mortgaged the same in favour of Har Sahai son of Chaina, vide mortgage deed dated 05.07.1882. The said mortgage deed is much prior to the alleged mortgage claimed to have been executed by Suraj Kaur. The mortgage deed executed by Suraj Kaur, itself mentions the earlier mortgage by Matru in favour of Har Sahai. The property in dispute was never got redeemed by Matru or his successors. Judgment and decree passed in Civil Suit no. 290 of 1982, it is submitted was an outcome of fraud, collusion, misrepresentation and without impleading the defendants as parties, therefore was not binding upon them. Dismissal of the suit was prayed for.

5. Replication was filed. From the pleadings of the parties, following issues were framed by the learned trial Court:-

1. Whether the plaintiff is owner in possession of the plot in dispute as alleged in the plaint? OPP

2. Whether the plaintiff is entitled to injunction as prayed for? OPP

3. Whether the suit is not maintainable in the present form? OPD

4. Whether the plaintiff has no locus-standi to file the present suit? OPD

5. Whether the pl