# Anand Prakash Sharma v. Jashwant Singh & Ors

- **Citation:** (2022) 11 ILRA 804
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-10-20
- **Case number:** Second Appeal No. 734 of 2012
- **Bench:** J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anand-prakash-sharma-v-jashwant-singh-ors-47876
- **Pages:** 16

## Headnote

A. Civil Law - Code of Civil Procedure,
1908 - Order XXIII Rule 1(4) CPC - Order
2 Rule 2 - Withdrawal of suit - Whether
once a suit is dismissed and withdrawn,
without permission to file fresh suit, is
barred under Order XXIII Rule 1(4) and
Order II Rule 2(C) C.P.C - As per Order
XXIII Rule 1(4), where the plaintiff
withdraws from a suit, without the
permission of Court to institute a fresh
suit for the subject-matter, he shall be
preclude from instituting any fresh suit in
respect of such subject-matter or such
part of the claim - Held - Supreme court
decision in Vallabh Das case propounds
the principle that a subsequent suit, based
on a different cause of action, though may
be related to the same property or may be
the same rights, may constitute a different
subject matter from the previous litigation
- The expression "subject matter" is not
defined in the Civil Procedure Code - That
expression includes the cause of action
and the relief claimed - Unless the cause
of action and the relief claimed in the
second suit are the same as in the first
suit, it cannot be said, that the subjectmatter of the second suit is the same as
that in the previous suit - All that is
required to dispel the bar under Order
XXIII Rule 1(4) or Order II Rule 2 CPC is
that the subsequent suit should be based
on a different cause of action than the one
involved in the earlier suit - A suit
withdrawn without permission to file a
fresh suit, does not bar the subsequent
suit if the two suits are not based on the
same cause of action, even though the
earlier suit relates to the same property
between the same parties (Para 44, 45)

On 04.07.1996 there was an attempt to trespass
on a property of Jaswant by Anand Prakash -
therefore on 08.07.1996 Jaswant instituted a
suit for permanent injunction i.e. Suit O.S. No.
737 of 1996 - However, the suit was
unconditionally withdrawn on 03.04.1997 when
the threat ended - After a short break, after the
first suit had been withdrawn, on 20.06.1997
Anand Prakash actually trespassed on the
property, encroaching and building on it - After
attempts to reach a peaceful settlement failed,
O.S. No. 1162 of 1998 was instituted by
Jaswant, for a declaration of title based on the
sale certificate by the Revenue Authorities in
favour of Jaswant Singh and mandatory
injunction - It was argued by Anand Prakash
that the suit brought on the same cause of
action (i.e. O.S. No. 1162 of 1998) is barred by
the principle of res judicata & that the
subsequent suit is also barred by Order II Rule
2 CPC, because Jaswant Singh, in his earlier suit
being out of possession, asked for an injunction
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
805
simplicitor, instead of seeking the substantial
relief
of
declaration
and
recovery
of
possession that he ought to have done - Held
- in the absence of a plea being raised, and
particularly, an issue being framed about the
suit being barred either under Order XXIII
Rule 1(4) or under Order II Rule 2 CPC, the
parties did not have opportunity to lead
evidence on the point - Merely because the
original suit was withdrawn by Jaswant,
without permission to file a fresh suit, does
not bar the subsequent suit brought by
Jaswant Singh either under Order XXIII Rule
1(4) CPC or under Order II Rule 2, because
the two suits are not based on the same
cause of action, even though the earlier suit
relates to the same property between the
same parties - the cause of action in the two
suits are distinct and different, they have
arisen at different points of time; although
closely placed. (Para 41, 45)

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,767 of 56,560. This is a partial read: ask again with offset=39767 for what follows._

804 INDIAN LAW REPORTS ALLAHABAD SERIES
changes to have a mature thinking. In this
evolution process, according to us, gender
sensitization
program
can
play
an
important role. We, therefore, recommend
that gender sensitization program be
especially designed and held for the
Family Court Judges in the State of U.P.
The
High
Court
Family
Court
Sensitization Committee may consider the
issue to take it further. The Registrar
General is directed to place the matter
before the committee.
----------
(2022) 11 ILRA 804
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.10.2022

BEFORE

THE HON'BLE J.J. MUNIR, J.

Second Appeal No. 734 of 2012
&
Second Appeal No. 733 of 2012

Anand Prakash Sharma ...Appellant
Versus
Jashwant Singh & Ors. ...Respondents

Counsel for the Appellant:
Sri Manish Chandra Tiwari, Sri B.N. Upadhyaya,
Sri Chandan Sharma, Sri M.K. Rajvanshi, Sri
Nitin Sharma, Sri Sanjay Kumar Srivastav, Sri
Akshay Pratap

Counsel for the Respondents:
Sri Santosh Kr. Srivastava, Sri B.N. Agrawal,
Smt. Alka Srivastava

A. Civil Law - Code of Civil Procedure,
1908 - Order XXIII Rule 1(4) CPC - Order
2 Rule 2 - Withdrawal of suit - Whether
once a suit is dismissed and withdrawn,
without permission to file fresh suit, is
barred under Order XXIII Rule 1(4) and
Order II Rule 2(C) C.P.C - As per Order
XXIII Rule 1(4), where the plaintiff
withdraws from a suit, without the
permission of Court to institute a fresh
suit for the subject-matter, he shall be
preclude from instituting any fresh suit in
respect of such subject-matter or such
part of the claim - Held - Supreme court
decision in Vallabh Das case propounds
the principle that a subsequent suit, based
on a different cause of action, though may
be related to the same property or may be
the same rights, may constitute a different
subject matter from the previous litigation
- The expression "subject matter" is not
defined in the Civil Procedure Code - That
expression includes the cause of action
and the relief claimed - Unless the cause
of action and the relief claimed in the
second suit are the same as in the first
suit, it cannot be said, that the subjectmatter of the second suit is the same as
that in the previous suit - All that is
required to dispel the bar under Order
XXIII Rule 1(4) or Order II Rule 2 CPC is
that the subsequent suit should be based
on a different cause of action than the one
involved in the earlier suit - A suit
withdrawn without permission to file a
fresh suit, does not bar the subsequent
suit if the two suits are not based on the
same cause of action, even though the
earlier suit relates to the same property
between the same parties (Para 44, 45)

On 04.07.1996 there was an attempt to trespass
on a property of Jaswant by Anand Prakash -
therefore on 08.07.1996 Jaswant instituted a
suit for permanent injunction i.e. Suit O.S. No.
737 of 1996 - However, the suit was
unconditionally withdrawn on 03.04.1997 when
the threat ended - After a short break, after the
first suit had been withdrawn, on 20.06.1997
Anand Prakash actually trespassed on the
property, encroaching and building on it - After
attempts to reach a peaceful settlement failed,
O.S. No. 1162 of 1998 was instituted by
Jaswant, for a declaration of title based on the
sale certificate by the Revenue Authorities in
favour of Jaswant Singh and mandatory
injunction - It was argued by Anand Prakash
that the suit brought on the same cause of
action (i.e. O.S. No. 1162 of 1998) is barred by
the principle of res judicata & that the
subsequent suit is also barred by Order II Rule
2 CPC, because Jaswant Singh, in his earlier suit
being out of possession, asked for an injunction
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
805
simplicitor, instead of seeking the substantial
relief
of
declaration
and
recovery
of
possession that he ought to have done - Held
- in the absence of a plea being raised, and
particularly, an issue being framed about the
suit being barred either under Order XXIII
Rule 1(4) or under Order II Rule 2 CPC, the
parties did not have opportunity to lead
evidence on the point - Merely because the
original suit was withdrawn by Jaswant,
without permission to file a fresh suit, does
not bar the subsequent suit brought by
Jaswant Singh either under Order XXIII Rule
1(4) CPC or under Order II Rule 2, because
the two suits are not based on the same
cause of action, even though the earlier suit
relates to the same property between the
same parties - the cause of action in the two
suits are distinct and different, they have
arisen at different points of time; although
closely placed. (Para 41, 45)

Dismissed. (E-5)

List of Cases cited:

1. Sarguja Transport Service Vs State Transport
Appellate Tribunal, M.P. Gwalior & ors., (1987) 1
SCC 5

2. Vallabh Das Vs Dr. Madan Lal & ors., (1970)
1 SCC 761

3. K.V. Shivakumar & ors. Vs National Institute
of Mental Health and Neuro Sciences & ors.,
2016 SCC OnLine Kar 8037

4. Kasarapu Sujatha & anr. Vs Veera Velli Veera
Somaiah, 2007 SCC OnLine AP 676

(Delivered by Hon'ble J.J. Munir, J.)

1. Both these Second Appeals arise
out of a common judgment, but separate
decrees passed in two connected Civil
Appeals, which, in turn, have arisen from
suits inter partes relating to the same
subject matter that are in the nature of
cross-suits. This judgment will dispose of
both the appeals.

2. Second Appeal No. 733 of 2012
has been preferred by the plaintiff of
Original Suit No. 273 of 1998 against the
defendants of the said suit, whereas Second
Appeal No. 734 of 2012 has been preferred
also by the same man, Anand Prakash
Sharma, but in his capacity as defendant
no.1 to Original Suit No. 1162 of 1998,
instituted by the first defendant to Original
Suit No. 273 of 1998. Effectively, both the
suits were contested between Anand
Prakash Sharma and Jaswant Singh. While
Anand Prakash Sharma's suit being O.S.
No. 273 of 1998 was dismissed, Jaswant
Singh's suit being O.S. No. 1162 of 1998
was decreed by the Trial Court, also by a
common judgment, but separate decrees.
The suits were consolidated and tried
together, with O.S. No. 273 of 1998 as the
leading case. Most of the evidence of
parties was recorded in the leading suit.
Civil Appeal No. 9 of 2005 was preferred
by Anand Prakash Sharma against the
judgment and decree dated 17.03.2005
passed in O.S. No. 273 of 1998, whereas
the other appeal being Civil Appeal No. 10
of 2005, was also preferred by Anand
Prakash Sharma, but from the judgment
and decree dated 17.03.2005 passed in O.S.
No. 1162 of 1998. Both the appeals were
consolidated and heard together by the
Additional
District
Judge
(Special),
Baghpat with Civil Appeal No. 9 of 2005
being treated as the leading case. The
learned Additional District Judge dismissed
both the appeals by a common judgment,
but separate decrees dated 28.05.2012.

3. Second Appeal No. 734 of 2012
has been preferred by Anand Prakash
Sharma from the decree passed in Civil
Appeal No. 9 of 2005. He has preferred
Second Appeal No. 733 of 2012 from the
decree passed in Civil Appeal No. 10 of
2005. Both the appeals have been admitted
806 INDIAN LAW REPORTS ALLAHABAD SERIES
to hearing by this Court vide separate
orders dated 30.04.2014 on the same
substantial question of law, which reads:

"Whether once a suit no. 737 of 1996
in between Jashwant Singh v. Anand
Prakash Sharma an others on same facts
circumstances dismissed and withdrawn
after filing of written statement without
permission to file fresh suit is clearly
barred under Order XXIII Rule 1(4) and
Order II Rule 2(C) C.P.C."

4.
Heard
Mr. Akshay Pratap,
Advocate holding brief of Mr. Chandan
Sharma, learned Counsel for the appellants
and Mr. B.N. Agrawal, learned Counsel for
the respondents in both the appeals.

5. In order to appreciate the
substantial question of law involved, it is
imperative to refer to the facts that have
given rise to these appeals.

6. Anand Prakash Sharma, the
plaintiff of O.S. No. 273 of 1998, who shall
hereinafter be referred to as ''the plaintiff'
for the sake of convenience, unless the
context requires otherwise, instituted O.S.
No. 273 of 1998 aforesaid against Jaswant
Singh son of Ram Swarup, Krishnapal
Singh son of Pirthi Singh and Yogesh
Sharma
son
of
Bool
Chand,
with
allegations that he is the owner in
possession of the house depicted at the foot
of the plaint by letters अ ब स ि, situate at
Village Patti Wajidpur, Gandhi Road,
Qasba Baraut, Pargana and Tehsil Baraut,
District Meerut. The house aforesaid has
been
assessed
to
tax
and
assigned
Municipal Premises No. 17/302B. The
plaintiff is paying house tax relating to the
said house, since the year 1989, to the
Nagar Palika Baraut. The plaintiff and Smt.
Maya Devi, wife of Rajendra Kumar, had
purchased the land/ plot, whereon the house
last mentioned stands, from Jagannath son
of Dhoom Singh, a resident of Village Patti
Wajidpur, District Baghpat vide registered
sale deed dated 12.08.1987. Later on, he
purchased the half share of Smt. Maya
Devi in the land subject matter of O.S. No.
273 of 1998 (for short, ''the suit property')
vide registered sale deed dated 11.03.1996.
As such, the plaintiff has become the sole
owner of the suit property, including the
house constructed thereon.

7. It is the plaintiff's case that on the
plot of land purchased as aforesaid, he got a
house constructed, wherein no one else has
got any share or interest. The defendants to
the suit, that is to say, Jaswant Singh,
Krishnapal Singh and Yogesh Sharma are
quarrelsome persons and intend to forcibly
grab the suit property together with the
plaintiff's house standing thereon. The
plaintiff asked the defendants to desist from
doing so, but they did not relent. The last
time the plaintiff asked the defendants from
interfering with his possession over the suit
property, they refused. This happened on
11.07.1996.

8. The plaintiff got his plaint amended
vide order dated 15.12.1997 to say that
upon the defendants filing their written
statement, he came to know that the
defendants, in connivance with the former
Sub-Divisional Officer of Baraut, R.S.
Chahar, got an auction sale of the suit
property in their favour, that was in excess
of the property mortgaged by Jagannath
Prasad in favour of the Uttar Pradesh
Financial Corporation (for short, ''the
UPFC') and also different from the said
property. The mortgaged property that was
auctioned in favour of the defendants is
very different from the suit property, which
shows the revenue sale claimed by the
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
807
defendants to be bogus, void and non est.
Defendant no. 1 to the suit, Jaswant Singh,
who shall hereinafter be referred to as the
defendant, unless the context requires
otherwise, was alleged to have, in the past,
instituted a suit for permanent injunction
against the plaintiff being O.S. No. 737 of
1996, which he unconditionally withdrew
vide order dated 03.04.1997 passed by the
Civil Judge (Sr. Div.), Meerut. It was
pleaded, therefore, that the suit brought on
the same cause of action (i.e. O.S. No. 1162
of 1998) is barred by the principle of res
judicata.

9. It is also the plaintiff's case that the
sale certificate issued in favour of the
defendant does not adversely affect the
plaintiff's right in House No. 17/302B,
which is a part of House No. 12/298. It was
also averred that looking to the background
of the sale certificate being issued in favour
of the defendant, the plaintiff is entitled to a
declaration of his rights. A permanent
injunction was sought to the effect that the
defendant to the suit be restrained, by a
permanent injunction, from interfering with
the plaintiff's possession and title over
house bearing No. 17/302B, as described at
the foot of the plaint by letters अ ब स ि,
situate at Town Baraut, Gandhi Road,
Qasba Baraut, Pargana and Tehsil Baraut,
District
Meerut,
or
endeavouring
to
dispossess him therefrom. A declaration
was sought (by amendment vide order
dated 15.12.1997) to the effect that the sale
certificate dated 13.06.1996 issued by the
Sub-Divisional
Officer,
Baraut,
R.S.
Chahar, in favour of the defendant and
registered in the Office of the Sub-Registrar
on 14.06.1996, being one in relation to a
property different from that mortgaged by
Jagannath son of Dhoom Singh in favour of
the UPFC, is void and non est, which has
no effect on the plaintiff's exclusive right
and title in House No. 17/302B, situate at
Gandhi Road, Qasba Baraut.

10. A joint written statement was filed
on behalf of all the three defendants to the
suit under reference, saying that the
plaintiff was not the owner of the suit
property and the suit had been instituted on
the foot of incorrect facts. The suit property
and that abutting it is a part of Khasra No.
472/1, Khewat No. 25, admeasuring 3
biswa, 15 biswansi, situate at Village
Wajidpur.
Devendra,
Narendra
and
Jainendra, all sons of Lala Raghubir Singh,
were owners in possession of the entire
land,
comprising
the
Khasra
last
mentioned. The entire area of land
comprising the Khasra last mentioned was
purchased by Jagannath son of Dhoom
Singh from Devendra vide registered sale
deed dated 20.07.1960. In consequence,
Jagannath became the sole owner in
possession of the said Khasra shown by
letters अ ब स ि (the suit property).

11. Devendra Kumar son of Jagannath
took a loan from the UPFC in the year
1986,
for
the
repayment
whereof,
Jagannath stood guarantor. As part of the
guarantee, he mortgaged the suit property
on 09.09.1986 with the UPFC. There was
default in repayment of the loan that
Devendra
Kumar
had
taken.
In
consequence, the UPFC caused the suit
property to be sold through public auction,
held by the Sub-Divisional Officer, Baraut
on 09.09.1994. The defendant purchased
the suit property in the said auction being
the highest bidder. The S.D.O. accepted the
bid and issued a sale certificate in his
favour, that was registered. Possession of
the suit property was also delivered to the
defendant. The plaintiff, however, mala fide
attempted to encroach upon a part of the
suit property on 04.07.1996, that is denoted
808 INDIAN LAW REPORTS ALLAHABAD SERIES
in the map annexed to the written statement
by letters अ क ख ग. The defendant
complained to the Police, on account of
which the plaintiff was not successful in his
endeavour to encroach. It was on this
account that the defendant instituted O.S.
No. 737 of 1996 for a permanent injunction
against the plaintiff, restraining him from
interfering with his possession in the suit
property. Later on, since the plaintiff
retracted and the threat of encroachment
ceased, the defendant withdrew O.S. No.
737 of 1996. After withdrawal of Suit No.
737 of 1996, evil design made itself bold
with the plaintiff again, and on occasion, he
encroached into the suit property and
constructed a room, a verandah and a
boundary wall, denoted by letters अ क ख ग
in the map, annexed to the written
statement. The said encroachment was done
taking
advantage
of
the
defendant's
weakness in reporting the trespass. The
plaintiff then commenced action.

12. It is the defendant's further case
that after mortgaging the suit property
denoted in the written statement by letters
अ ब स ि with the UPFC, Jagannath son
of Dhoom Singh had no interest to
convey in the plaintiff's favour or Smt.
Maya Devi's, or anyone else's. The
plaintiff and all others knew about the
fact that the suit property had been
mortgaged by Jagannath with the UPFC.
The execution of the sale sale deed
conveying the suit property by Jagannath
in favour of the plaintiff or Smt. Maya
Devi, after he had mortgaged it on
09.09.1986, is of no consequence and
does not confer any right or title upon
him/ them. It is then pleaded by the
defendant that the plaintiff's case that the
property shown in the written statement
by letters अ क ख ग has been assessed to
house tax by the Nagar Palika as House
No. 17/302 is not part of the suit
property, but another appurtenant house,
is incorrect, which the plaintiff, by clever
manoeuvre has got a subdivision assigned
and entered in his name. It does not
confer any benefit upon the plaintiff. The
entire property, that has been shown at
the foot of the plaint by letters अ ब स ि,
has one house Premises No. 12/298,
Gandhi Road, Baraut, entered in the name
of Jagannath Prasad son of Dhoom Singh.
Later on, the said house has been
numbered as 12/337, also entered in the
name of Jagannath Prasad son of Dhoom
Singh. Still later, the said house has been
assigned No. 17/303 and at that stage, the
name of Jagannath Prasad son of Dhoom
Singh has been mutated out and that of
the defendant (Jaswant Singh) entered in
the house tax assessment record by the
Municipal Board. It is the defendant's
case that part of the suit property shown
by letters अ क ख ग is in illegal
occupation of the plaintiff. Besides, the
entire suit property is entirely owned by
the defendant and that the defendant is
taking separate steps to dispossess the
plaintiff.

13. Upon the pleadings of parties, in
O.S. No. 273 of 1998, the following issues
were framed by the Trial Court (translated
into English from Hindi):

(1) Whether the plaintiff is the owner
in possession of property shown by letters
अ ब स ि at the foot of the plaint?

(2) Whether the sale certificate dated
13.06.1986 in favour of defendant no.1, for
the reasons given in the plaint, is
inoperative and void? If yes, its effect?

(3) To what relief is the plaintiff
entitled?
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
809

14. A number of documents were filed
on behalf of the plaintiff as well as the
defendant, which need not be recapitulated,
as the summary of these is set out in
copious detail in the judgments of the two
Courts below.

15. On behalf of the plaintiff, the
plaintiff, Anand Prakash Sharma, examined
himself as PW-1, one Kaluram as PW-2
and Phool Singh as PW-3. On behalf of the
defendants,
defendant
Jaswant
Singh
testified in the dock as DW-1, Bhopal
Singh as DW-2 and Ramjan as DW-3. A
commission in the suit was also issued and
the Commissioner's report is available on
record as Paper No. 36-Ga1, together with
the annexed map.

16. Original Suit No. 1162 of 1998 was
instituted by Jaswant Singh, the defendant
against Anand Prakash Sharma, the plaintiff,
Smt. Maya Devi and Janeshwar with a case
that the owner in possession of the house
denoted by letters अ ब स ि in the map
annexed to the plaint, giving rise to the suit
under reference, was one Jagannath son of
Dhoom Singh. The plot of land, on which the
house stood, had an area of 567 square yards
or 3 biswa 15 biswansi. M/s. Shiv Shakti Oil
Udyog, Gandhi Road, Baraut secured a loan
from the UPFC and for the repayment of the
said loan, Jagannath Prasad stood guarantor.
He mortgaged his property last mentioned on
09.09.1986 in favour of the UPFC, executing
the necessary documents. M/s. Shiv Shakti
Oil Udyog could not repay the loan advanced
by the UPFC, in consequence of which the
UPFC issued a recovery certificate against
M/s. Shiv Shakti Oil Udyog and the
guarantor, Jagannath Prasad. In execution of
the recovery certificate, Jagannath Prasad's
property, above described, was sold in a
public auction by the revenue authorities. The
said property, according to the defendant, is
the subject matter of O.S. No. 1162 of 1998,
instituted by him against the plaintiff, Anand
Prakash Sharma and others. It is the
defendant's case that he purchased the suit
property subject matter of O.S. No. 1162 of
1998 at the public auction held on
09.09.1994, making the highest bid of Rs.
2,01,000/-, which was accepted. The entire
sum of money was deposited with the
Authorities. The auction sale in favour of the
defendant was confirmed by the SubDivisional Officer, Meerut.

17. Upon securing the requisite stamp
papers from the defendant, the Sub-Divisional
Officer executed a sale certificate in his favour
on 08.02.1996, which was registered with the
Sub-Registrar, Baraut on 13.06.1996. The
defendant
received
the
registered
sale
certificate from the Sub-Registrar's office. It is
also the defendant's case that the SubDivisional Officer, after
execution
and
registration of the sale certificate, delivered
actual physical possession on 04.07.1996 over
the suit property subject matter of O.S. No.
1162 of 1998.

18. It is necessary to mention at this
junction that the property, subject matter of
O.S. No. 1162 of 1998 and that subject
matter of O.S. No. 273 of 1998, instituted
by the plaintiff, for all intents and purposes,
is the same property. The distinction, that
the plaintiff has attempted to carve out
between the two, stands negatived by the
findings of fact recorded by the two Courts
below, that are no longer in issue in the
present appeal. Thus, the property subject
matter of O.S. No. 1162 of 1998 shall, in
keeping with its description given in the
earlier part of the judgment, be mentioned
as the suit property hereinafter.

19. It is the defendant's case that no
sooner he was delivered possession by the
810 INDIAN LAW REPORTS ALLAHABAD SERIES
Sub-Divisional Officer over the suit property
on 04.07.1996, the plaintiff, along with some
antisocial elements attempted to trespass and
encroach upon a part of the suit property
denoted in the plaint map by letters क ख ग घ,
which the defendant resisted. He reported the
matter to the Police also. The plaintiff
withdrew and went away threatening that he
would take possession of the suit property at
an opportune time. The defendant claims to
have inquired of the plaintiff as to how he
lays claim to a part of the suit property
denoted by letters क ख ग घ, whereupon it
was revealed by the plaintiff that he had a
sale deed dated 12.08.1987 in his favour
executed by Jagannath Prasad and another by
Smt. Maya Devi, defendant no.2 to O.S. No.
1162 of 1998. He asserted that he was the
sole owner in possession of the said property.
It is pleaded that the entire suit property was
mortgaged
by
Jagannath
Prasad
on
09.09.1986 in favour of the UPFC in order to
offer security for the loan availed by M/s.
Shiv Shakti Oil Udyog and upon default, the
entire suit property was caused to be sold in a
revenue sale by the UPFC in realization of its
overdues. It was in this sale, as already stated,
that the defendant has purchased the suit
property. It is then the defendant's case that
the plaintiff forcibly occupied a part of the
suit property, denoted by lettersक ख ग घ on
20.06.1997,
taking
advantage
of
the
defendant's
weakness
in
reporting
the
trespass. The efforts made by the defendant
before the Sub-Divisional Officer to recover
possession, forcibly taken by the plaintiff, did
not yield result.

20. It is the defendant's case that the
part of the suit property denoted by letters
क ख ग घ, an area of 65 square yards, is in
the illegal occupation of the plaintiff. He
has refused to vacate the same despite
demand. Some part of it, the plaintiff
claimed to have purchased from Smt. Maya
Devi and it is for this reason that the
defendant has impleaded Smt. Maya Devi
as defendant no.2 to O.S. No.1162 of 1998.

21. The defendant Jaswant Singh, in
O.S. No. 1162 of 1998 claimed a
declaration to the effect that on the basis of
the sale certificate dated 08.02.1996,
registered on 13.06.1996, he is the owner
of the suit property (denoted by letters अ ब
स ि). A mandatory injunction was claimed
against the plaintiff, besides Smt. Maya
Devi and Janeshwar, to the effect that out
of the suit property, the part denoted by
letters क ख ग घ, the defendants to the suit,
be ordered to withdraw from occupation of
the said land, part of the suit property, and
in case of failure to do so, the defendant
(Jaswant Singh) be put in possession of the
above mentioned part of the suit property
through the process of Court, after
expelling the plaintiff (Anand Prakash) and
the other two defendants to the present suit.

22. The suit was contested by filing a
written statement, more or less on the same
terms as the case of the plaintiff (Anand
Prakash) set out in his plaint, giving rise to
O.S. No. 273 of 1998.

23. On the pleadings of parties, in
O.S. No. 1162 of 1998, as many as fourteen
issues were framed, that read (translated
into English from Hindi):

(1) Whether the plaint is undervalued?

(2) Whether the court-fee paid is
insufficient?

(3) Whether the plaintiff's suit is liable
to be stayed under Section 10 CPC?

(4) Whether the plaintiff on the basis
of the public auction dated 09.09.1994 is
the owner in possession of the house in
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
811
question, denoted in the map by letters अ ब
स ि?

(5) Whether the land shown by letters
क ख ग घ, part of the property denoted by
letters अ ब स ि, has been encroached upon
(by the defendant) (sic) on 20.06.1997?

(6) Whether defendant no.1, on the
basis of the sale deeds dated 12.08.1987
and 13.09.1996, is the owner in possession
of the disputed house, as averred in
Paragraph No. 20 of the written statement?

(7) Whether the land on which the
disputed house stands is different from that
mortgaged by Jagannath and not part of
House No. 12/298, as averred in Paragraph
No. 22 of the written statement?

(8) Whether the plaintiff's suit is
barred by res judicata, as averred in
Paragraph No. 22 of the written statement?

(9) Whether the S.D.O., Baraut, in
order to extend unlawful gain to the
plaintiff, has sold 567 square yards of land
in place of the mortgaged land, 95 feet in
length and 49 feet in width, admeasuring
497 square yards? If yes, its effect?

(10) Whether the auction sale dated
09.09.1994 has not been confirmed and the
suit is premature? If yes, its effect?

(11) Whether
defendant
no.1
is
entitled to the benefit of being a bona fide
purchaser and in continuous adverse
possession, as averred in Paragraph No. 30
of the written statement?

(12) Whether the suit is barred by the
principles of acquiescence and estoppel?

(13) Whether the defendant is entitled
to special costs?

(14) To what relief is the plaintiff
entitled to?

*(15) Whether the suit is barred by
limitation?

(*Issue No. 15 does not find record in
the judgments passed either by the Trial
Court or the Appellate Court, but a perusal
of the order-sheet dated 01.08.2002 in O.S.
No. 1162 of 1998 shows that the said issue
was framed by the Presiding Officer below
the type-written issues, numbered as Issue
No. 14 erroneously; it should have been
numbered as '15')

24. The Trial Court took up for
decision Issue No. 1 of O.S. No. 273 of
1998 and Issues Nos. 4, 6, 8 and 9 of O.S.
No 1162 of 1998 together. The issues under
reference deal with the substantial part of
the dispute between parties, where the Trial
Court has concluded that the land, that
Anand Prakash claims to be in his
ownership possession, cannot be accepted
because on the basis of the public auction
dated 09.09.1994, Jaswant Singh is proven
to be its owner. It was also opined that the
sale deed dated 12.08.1987, claimed by
Anand Prakash in his favour, does not
confer any right, title or interest upon him.
The sale certificate registered in favour of
Jaswant Singh on 13.06.1996 was held by
the Trial Court, on a consideration of oral
evidence, including that of the witnesses of
Anand Prakash, to be valid, who testified
that the auction sale was held, wherein they
had participated. Issues Nos. 1, 2 and 3 in
O.S. No. 1162 of 1998 were answered by
the Trial Court in favour of Jaswant Singh.
It was held that the suit is not liable to be
stayed under Section 10 CPC, because both
the suits have been consolidated and tried
together.

25. On Issue No.7, where Anand
Prakash introduced a case that the land
mortgaged by Jagannath Prasad, was
different from the one he had built his
house upon, and that Anand Prakash's
house is not part of House No. 12/1998, it
was held, upon a comparison of boundaries
of the property mentioned in the affidavit
by Jagannath at the time of mortgaging it,
812 INDIAN LAW REPORTS ALLAHABAD SERIES
with those of the suit property, that it was
the same property, which was mortgaged
and later on sold in auction for the
realization of its dues by the UPFC that
Jaswant Singh purchased.

26. In consequence of its findings on
the various issues, the Trial Court dismissed
O.S. No. 273 of 1998 brought by Anand
Prakash against Jaswant Singh and others
with costs, whereas O.S. No. 1162 of 1998,
instituted by Jaswant Singh against Anand
Prakash and others, was decreed with costs. It
was declared that on the basis of the sale
certificate dated 08.02.1996, registered on
13.09.1996, Jaswant Singh was the owner of
the suit property (denoted by letters अ ब स
ि). A mandatory injunction was issued,
ordering Anand Prakash to vacate the land
denoted by letters क ख ग घ, that was part of
the suit property, and deliver possession to
Jaswant Singh, and upon failure to do so,
Jaswant Singh would be entitled to recover
actual and physical possession of the said
property through process of Court.

27. The Lower Appellate Court, in
hearing the appeal, formulated three points
for determination. These read (translated into
English from Hindi):

(1) Whether the plaintiff (Anand
Prakash) had any right to purchase the
property denoted by letters अ ब स ि, which
he claims to have done through the sale deed
of the year 1987?

(2) Whether the property mortgaged by
Jagannath with the UPFC in the year 1986,
included the disputed land, denoted by letters
अ ब स ि or not?

(3) Whether Anand Prakash after
execution of the sale certificate in favour of
Jaswant is still owner in possession of the
disputed land shown by letters अ ब स ि?

28. It must be remarked at the outset
that though the Lower Appellate Court has
wholesomely dealt with the substantial
issues arising between parties under the
points of determination framed, these are
somewhat unhappily worded. But, that does
not detract, in any manner, from the
substance of determination made on the
issues arising between parties. Though
writing a judgment of affirmation, the
Lower Appellate Court has examined
evidence threadbare with reference to each
point of determination covering all the
issues, arising in the suit.

29. The Lower Appellate Court has
opined, upon a careful comparison of the
boundaries of the suit property purchased
by Jagannath from its erstwhile owner,
Devendra son of Raghubir way back in the
year 1960 through a registered sale deed as
also the subsequent sale deeds executed
that there was no property with Jagannath
in the vicinity, apart from that bearing
Khasra No. 472/1, admeasuring 3 biswa 15
biswansi or 567 square yards, which he
mortgaged with the UPFC. That finding of
fact about the identity of the suit property
and its auction sale at the behest of the
UPFC by the S.D.O. has been recorded
concurrently by the Courts below, where a
valid sale has been found to have taken
place in favour of Jaswant Singh. The later
sale deed executed by Jagannath in favour
of Anand Prakash and Maya Devi and the
one by Maya Devi, transferring her half
share, purportedly purchased through the
sale deed of 1987, in favour of Anand
Prakash, have been held to be void, because
Jagannath lost all title to the suit property
as he mortgaged it with the UPFC, which
later on brought it to sale for the realization
of its loan overdues through public auction.
On the other hand, the proceedings of the
auction in favour of Jaswant Singh have
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
813
been found to be fully established by both
documentary and oral evidence on record.
These questions need not detain this Court
in the present appeal, which has been
admitted to hearing on the substantial
question of law, indicated hereinabove.

30. The learned Counsel for the
appellants has submitted and attempted to
show that the property, that was purchased
by Anand Prakash and Maya Devi through
the sale deed of 1987 from Jagannath, was
one that Jagannath purchased from a
certain Shekhar Chandra Jain. It was not
Jagannath's
property
purchased
from
Devendra son of Raghubir way back in the
year 1960, that he subsequently mortgaged
with UPFC. These are issues not open in
this appeal, which the Lower Appellate
Court, in any case, on a careful analysis of
the documentary and oral evidence, has
answered for the defendant and against the
plaintiff.

31. So far as the substantial question
of law involved in this appeal is concerned,
learned Counsel for the plaintiff has
submitted that Anand Prakash was always
in possession of the suit property since
1987 i.e. since the execution of the sale
deed in his favour by Jagannath. Therefore,
aggrieved by the perpetual interference
with his possession by Jaswant Singh, he
instituted Suit No. 273 of 1998 for a
permanent injunction to restrain him from
interfering with it and for declaring the sale
certificate registered on 13.06.1986 null
and void. In the aforesaid suit, Jaswant
Singh filed his written statement on
14.05.1998, where he took a plea that
possession of the suit property was
delivered to him by the Sub-Divisional
Officer on 04.07.1996, but the same was
illegally taken by the plaintiff. However,
the date of trespass has not been indicated,
despite the incident occurring months
before the institution of O.S. No. 273 of
1998 by Anand Prakash. It is submitted that
in O.S. No. 1162 of 1998 instituted by
Jaswant Singh, it is pleaded that the
possession was illegally taken by Anand
Prakash on 20.06.1997, which happens to
be 11 months before filing of his written
statement in O.S. No. 273 of 1998. It is
argued that it is quite evident that the date
of the alleged possession being illegally
taken by Anand Prakash was concocted to
create an artificial cause of action and seek
remedy through O.S. No. 1162 of 1998.

32. It is next submitted that on the
same cause of action, Jaswant Singh had
earlier instituted O.S. No. 737 of 1996,
seeking permanent injunction to the effect
that
Anand
Prakash
and
the
other
defendants to that suit be restrained from
interfering with his possession over the suit
property, that is to say, the house as per
boundaries shown at the foot of the plaint,
giving rise to the said suit. Later on, this
suit was withdrawn by Jaswant Singh on
03.04.1997, without leave of the Court. It is
argued that Jaswant Singh instituted O.S.
No. 737 of 1996, which he withdrew
without
leave
and
then
maliciously
instituted O.S. No. 1162 of 1998 on the
same cause of action. It has been
emphatically argued that cause of action in
both the suits is one and the same and the
first suit being withdrawn without liberty,
O.S. No. 1162 of 1998 is barred by the
provisions of Order XXIII Rule 1(4) and
Order II Rule 2 CPC.

33. It is precisely on the last limb of
the submission that the substantial question
of law that is involved in this appeal was
formulated.
The
other
ancillary
submissions made may also be relevant to
some extent in order to judge whether on
814 INDIAN LAW REPORTS ALLAHABAD SERIES
the facts a case of bar to the trial of O.S.
1162 of 1998 under either of the provisions
of law can be inferred.

34. In support of his contention that
the subsequent suit brought by Jaswant
Singh is barred under the law, learned
Counsel for the appellants has relied on the
decision of the Supreme Court in Sarguja
Transport Service v. State Transport
Appellate Tribunal, M.P. Gwalior and
others, (1987) 1 SCC 5, where it has been
held:

"7. The Code as it now stands thus
makes
a
distinction
between
"abandonment" of a suit and "withdrawal"
from a suit with permission to file a fresh
suit. It provides that where the plaintiff
abandons a suit or withdraws from a suit
without the permission, referred to in subrule (3) of Rule 1 of Order XXIII of the
Code, he shall be precluded from instituting
any fresh suit in respect of such subjectmatter or such part of the claim. The
principle underlying Rule 1 of Order XXIII
of the Code is that when a plaintiff once
institutes a suit in a court and thereby avails
of a remedy given to him under law, he
cannot be permitted to institute a fresh suit
in respect of the same subject-matter again
after abandoning the earlier suit or by
withdrawing it without the permission of
the court to file fresh suit. Invito
beneficium non datur -- the law confers
upon a man no rights or benefits which he
does not desire. Whoever waives, abandons
or disclaims a right will loose it. In order to
prevent a litigant from abusing the process
of the court by instituting suits again and
again on the same cause of action without
any good reason the Code insists that he
should obtain the permission of the court to
file a fresh suit after establishing either of
the two grounds mentioned in sub-rule (3)
of Rule 1 of Order XXIII. The principle
underlying the above rule is founded on
public policy, but it is not the same as the
rule of res judicata contained in Section 11
of the Code which provides that no court
shall try any suit or issue in which the
matter directly or substantially in issue has
been directly or substantially in issue in a
former suit between the same parties, or
between parties under whom they or any of
them claim, litigating under the same title,
in a court competent to try such subsequent
suit or the suit in which such issue has been
subsequently raised, and has been heard
and finally decided by such court. The rule
of res judicata applies to a case where the
suit or an issue has already been heard and
finally decided by a court. In the case of
abandonment or withdrawal of a suit
without the permission of the court to file a
fresh suit, there is no prior adjudication of a
suit or an issue is involved, yet the Code
provides, as stated earlier, that a second suit
will not lie in sub-rule (4) of Rule 1 of
Order XXIII of the Code when the first suit
is withdrawn without the permission
referred to in sub-rule (3) in order to
prevent the abuse of the process of the
court."

35. On behalf of the respondent, it is
submitted that in O.S. No. 737 of 1996 and
O.S. No. 1162 of 1998, the cause of action
and the relief claimed are different. O.S.
No. 737 of 1996 was instituted by Jaswant
Singh for a permanent injunction to restrain
the defendants to that suit, including Anand
Prakash, from interfering with Jaswant
Singh's possession over the suit property,
whereas O.S. No. 1162 of 1998 was
instituted by Jaswant Singh against Anand
Prakash and the other defendants to the suit
for a declaration to the effect that on the
basis of the sale certificate registered on
13.06.1996, he be declared the owner of the
11 All. Anand Prakash Sharma Vs. Jashwant Singh & Ors.
815
suit property (denoted by letters अ ब स ि)
and a mandatory injunction directing the
defendants,
including
Anand
Prakash
issued to handover possession of the land
denoted by letters क ख ग घ in the plaint
map, part of the suit property, denoted by
letters अ ब स ि, in respect whereof, the
declaration has been claimed.

36. In support of his contention,
learned Counsel for the defendant has
placed reliance upon a decision of the
Supreme Court in Vallabh Das v. Dr.
Madan Lal and others, (1970) 1 SCC
761, where, in the context of a bar under
Order XXIII Rule 1(4) CPC, it has been
observed:

"5. Rule 1 of the Order 23, Code of
Civil Procedure empowers the courts to
permit a plaintiff to withdraw from the suit
brought by him with liberty to institute a
fresh suit in respect of the subject-matter of
that suit on such terms as it thinks fit.