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2019 Supreme(P&H) 1586
IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Hon’ble Mr. Justice Amol Rattan Singh
CR No.2230 of 2019 (O&M)
Rani & Anr.
v.
Manoj & Ors.
{Decided on 31/05/2019}
Forcible Dispossession--Resjudicata--Principle of resjudicata is not applicable to a suit instituted under S.6 of Specific Relief Act
Forcible Dispossession--Previous Suit--Provisions of S.40 of Evidence Act would not be applicable to a suit instituted under S.6 of Specific Relief Act.
Headnote:
(A) Specific Relief Act, 1963, S.6--Suit against Forcible Dispossession--Resjudicata--Principle of resjudicata is not applicable to a suit instituted under S.6 of Specific Relief Act--Even if such suit against forcible dispossession is decreed in favour of the plaintiff therein, the defendant therein still not barred from raising the question of title in a subsequent suit--Evidence Act, 1872, S.11. (Para 13)
(B) Specific Relief Act, 1963, S.6--Suit against Forcible Dispossession--The only thing to be seen in such a suit is that the person who has instituted such suit was actually proved to be in possession of the suit property and that he has filed that suit within a period of six months from him having been illegally dispossessed therefrom. (Para 12)
(C) Specific Relief Act, 1963, S.6--Suit against Forcible Dispossession--Previous Suit--Provisions of S.40 of Evidence Act would not be applicable to a suit instituted under S.6 of Specific Relief Act--Held; once the Act of 1963 stipulates that a suit brought under Section 6 of that Act would not debar a party to that lis from instituting a separate suit to prove his title thereto, naturally Section 40 of the Act of 1872 can have no application--Evidence Act, 1872, S.40. (Para 14)
JUDGMENT
Mr. Amol Rattan Singh, J.:- CM No. 12488-CII-2019
Judgment had been reserved in the accompanying petition on 05.04.2019 and the matter had been put up for re-hearing, for the reasons recorded in the order dated 17.05.2019, to the effect that during the course of dictation of the judgment, it was seen that though in the petition it was stated that two separate suits had earlier been filed by the petitioners against the respondents/the first respondent, the judgment and decree in only one of those cases (filed by petitioner no. 2), has been annexed with the petition, a copy of that judgment being Annexure P-4 and the copy of the decree issued being Annexure P-5.
Thus, the judgment in the suit instituted by petitioner no. 1 herein, i.e. Rani, had not been annexed, with it not therefore certain as to whether the said suit was also one instituted under the provisions of Section 6 of the Specific Relief Act, 1963, or otherwise.
Consequently, upon learned counsel for the petitioners having been directed to place on record, a copy of the suit instituted by petitioner no. 1 in the accompanying petition, this application has been filed seeking to place on record the judgment and decree-passed in Civil Suit No. 505 of 2013, decided on 03.10.2017 by the learned Civil Judge (Junior Division), Rohtak, it also being a suit filed by petitioner no. 1, Rani, seeking relief under the provisions of Section 6 of the Act of 1963.
The said suit had been decreed in favour of petitioner no. 1, with possession of the suit property ordered to be handed over by the defendants therein, two of whom are the same as are impleaded as respondents no. 1 and 2 in the accompanying petition, the 3rd defendant in that case being the father of respondents no. 1 and 2 herein, Nanak Chand, with, presently, respondent no. 3 in the petition being the mother of respondents no. 1 and 2, i.e. the wife of the late Nanak Chand.
The application is allowed and a copy of the judgment and decree passed by the learned Civil Judge (Junior Division), Rohtak, on 03.10.2017, in Civil Suit No. 505 of 2013, is taken on record in the accompanying petition, as Annexure P-8.
CR No. 2230 of 2019 (O&M)
By this petition, the petitioners challenge the order passed by the learned Civil Judge (Junior Division), Rohtak, dated February 07, 2019, by which the application filed by them (defendants in the suit before that court) under Rule 11 Order 7 of the Code of Civil Procedure, has been dismissed.
The contention of the petitioners in their application (copy Annexure P-2), was that the suit was not maintainable on the principle of res judicata, the issue in question already having been finally decided in two civil suits earlier instituted between the parties.
The petitioners further contended that they had purchased the suit land vide a sale deed dated 30.03.2007, which had been held to be valid by a competent court that had also ordered delivery of possession of the land to them, and that the court of the Civil Judge that had decided the said suits not being one subordinate to the one before which the suit in the instant lis was pending, the latter court could not adjudicate upon the matter again.
Lastly, it was contended that since the petitioners were in the process of taking possession of the suit land in execution proceedings instituted in a competent court, such exercise of their legal right, “could not cause any injury to the plaintiffs”.
2. A reply was filed to that application by the respondent-plaintiffs, stating that the judgment and decree passed by the Civil Judge (Junior Division) in the previous lis, was one in which that civil suit was not actually maintainable, despite which the decree had been passed, without affording a proper opportunity to the plaintiffs to prove their title.
As regards purchase of the suit land on March 30, 2007, as per the respondent-plaintiffs the sale deeds were based upon a fraud ‘executed’.
3. It was next contended in the reply of the plaintiffs
