A fresh suit filed on the same facts as an earlier suit dismissed in default under Order 9 Rule 8 CPC is barred under Order 9 Rule 9 CPC.

Neutral Citation No:2023:PHHC:164124

RSA-2075-2018

1

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

120

RSA-2075-2018

Date of Decision: 19.12.2023

Dalip Singh

....Appellant

Versus

Prem Singh and others

....Respondents

CORAM:HON'BLE MR. JUSTICE SANJAY VASHISTH

Present:

Mr. Pankaj Bali, Advocate for the appellant.

*****

SANJAY VASHISTH, J.(Oral)

1.

Present regular second appeal has been filed by the

plaintiff against the concurrent findings of dismissal of civil suit.

2.

Plaintiff-Dalip Singh filed a civil suit for declaration with

consequential relief of permanent injunction praying therein a decree

for declaration to the effect that Tatima prepared by the Halka Patwari

is incorrect, therefore, same be cancelled and a corrected Tatima as

per actual and factual position existing at the spot and Killa No.5 be

divided as prayed in the suit.

Plaintiff claimed himself to be owner in possession of the

agricultural land measuring 12 Kanala-10 Marla vide Khewat

No.404/374, Khatoni No.731, rect. No.302, Killa No.1 (8-0), rect.

No.303, Killa No.5/1(4-10), situated at Village Kachhwa, Tehsil and

District Karnal vide Jamabandi for the year 2001-2002. The plaintiff

claimed that he became the owner of this land by way of a civil Court

RASHMI

2023.12.22 10:49

I attest to the accuracy and

integrity of this document

Neutral Citation No:2023:PHHC:164124

RSA-2075-2018

2

decree which was passed in favour of the plaintiff against Ballu son of

Shankar in the year 1986 in civil suit No.697 dated 28.10.1986 and

before this, Ballu was the owner of total land measuring 25K-0M vide

Khewat No.246/228 min Khatoni No.521 rect. no.302, Killa No.1(8-

0), 2(8-0), 3/1(2-0), rect No.303 Killa No.5(7-0) situated in Village

Kachhwa, Tehsil and District Karnal vide Jamabandi for the year

1981-82.

3.

Plaintiff also pleaded in the suit that in the earlier civil

Court decree, he had been given specific numbers and same had also

been agreed between the parties that they being in possession of the

specific area be declared owner of the same i.e. suit land. Plaintiff

claimed his possession towards the western side of the total land

measuring 15K-0M. However, at the time of sanction of the mutation,

Patwari Halka made the Tatima of the land wherein the portion of land

which plaintiff is in possession and was earlier owned by Ballu, was

ear marked in a vertical position. Thus, as per Revenue Records as

well as Tatima, there is no rasta approachable to the field of the

plaintiff.

4.

Defendants filed their written statement and therein, it

was pleaded in specific that the plaintiff was never in possession of

the land, which is towards the western side of land measuring 15K-

9M, and Tatima of the land has rightly been prepared by the Revenue

Field Staff with the consent of the plaintiff after verifying the factual

position prevailing over the spot.

RASHMI

2023.12.22 10:49

I attest to the accuracy and

integrity of this document

Neutral Citation No:2023:PHHC:164124

RSA-2075-2018

3

5.

After framing of the issues, vide order dated 05.01.2013,

learned trial Court concluded that plaintiff was well aware of the entry

of the Tatima at the time of preparation of Mutation and further, as per

settled law, once, earlier suit had been dismissed in default under

Order 9 Rule 8 C.P.C., then, fresh suit on the same fact is barred under

Order 9 Rule 9 C.P.C.

For the sake of convenience, Paragraph No. 22 of the

judgment passed by learned trial Court is reproduced herebelow”

'22.Thus, from the abovesaid discussion, it is clear

that the plaintiff was well aware of the entry of the

Tatima at the time of preparation of mutation and

further, it is the settled law that when the earlier suit

was dismissed in default under order 9 rule 8 CPC,

then, fresh suit on the same fact is barred under

Order 9 rule 9 CPC. Hence, this court is of the

considered opinion that the plaintiff is not entitled to

the relief of declaratio