132 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CM No.2941-C of 2025 in/and RSA No.1068 of 2020 (O&M)

Date of Decision: 20.03.2025 Sukhdev Singh …..Appellant Versus Kishan Singh and another .....Respondents CORAM : HON’BLE MR. JUSTICE PANKAJ JAIN Present : Mr. Kanwal Goyal, Advocate for the applicant/appellant.

PANKAJ JAIN, J. (ORAL)

CM No.2941-C of 2025 This is an application filed under Order XLI Rule 19 CPC for restoration of the above mentioned regular second appeal.

For the reasons recorded in the application, the same is allowed. Main appeal is restored to its original number and taken on Board today itself.

RSA No.1068 of 2020 (O&M)

Defendant is in second appeal. For convenience, the parties hereinafter are referred to by their original position before the Court of the First instance i.e. the appellant as the defendant and the respondents as the plaintiffs.

2. Plaintiffs filed suit for declaration to the effect that the transfer deed dated 29.10.2003 in favour of the defendant and the consequential mutation, are illegal and bad. Further challenge was raised to the judgment and decree dated 23.07.2012 passed in Civil Suit No.166 of 2011, dated

23.07.2012 claiming that the same was obtained by fraud.

3. Parties are brothers. Their father Chanchal Singh was owner of the land measuring 68 Kanals 17 Marlas including the suit property. As per the plaintiffs, defendant by playing fraud and misrepresentation, got transfer deed executed in his favour on 29.10.2003. Specific Khasras bearing Nos.2//17 and 2//24/1 got transferred in his favour. Plaintiffs claimed that whole of the property being a joint property owned by plaintiffs and defendant, the two khasra numbers could not have been transferred specifically in favour of the defendant by their father Chanchal Singh. It was further claimed that the defendant earlier filed suit bearing No.166 of 2011 seeking decree of permanent injunction. In the said suit, counter-claim was filed by the present plaintiffs challenging transfer deed dated 29.10.2003. The counter-claim preferred by the plaintiffs, was dismissed. The finding recorded in injunction suit w.r.t. ownership being not binding, the plaintiffs are entitled for decree of declaration, as prayed for.

4. Suit was contested by the defendant. Defendant appeared and filed written statement. As per defendant, the dispute between the parties already stands adjudicated in the earlier lis. Counter-claim filed by the plaintiffs in the said suit, stands rejected and thus the present suit is not maintainable in the present form.

5. The suit filed by the plaintiffs was put to trial by the Court of the First Instance, framing the following issues:

“1. Whether the plaintiff is entitled for the decree of declaration as prayed for?OPP

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

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

3A. Whether the judgment and decree dated 23.07.2012 granted by the Court of Ms. Harreet Kaur Ld. Additional Civil Judge Sr. Division, Jalandhar passed in civil suit no. 166/2011 decided on 23.07.2012 is wrong and contrary to the basis principle of law?

4. Whether the plaintiff has concealed material facts from the Court? OPD

5. Whether the plaintiffs are estopped to file the present suit?

OPD

6. Whether the suit is barred by the principle of res judicata?

OPD

7. Whether the suit is barred under the provisions of Order 23 Rule 1 CPC? OPD

8. Whether the plaintiffs have not complied with the mandatory provision of Order 7 Rule 1(j) CPC? OPD

9. Relief.”

6. Deciding issues No.1, 2, 3A and 6 together, Court of the First Instance relied upon the observations made by the competent court in the earlier lis vide judgment dated 23.07.2012 holding that the counter-claim raising the same plea which already stands decided against the plaintiffs, the present suit was barred by res judicata. The plaintiffs having not assailed the findings recorded in the earlier lis by filing appeal b