We have heard the learned
counsel for the parties and perused the material on record. The main argument advanced on behalf of the appellant is
that the High Court in the first round in its judgment dated 30.03.1990
had specifically recorded that the dispute was with respect to 8
cents of land and the construction standing thereon. The Trial Court or the
High Court therefore in the present round of litigation could not have
confined it only to the construction and not the entire portion of land
measuring 8 cents.
On the other hand, learned Counsel
for the respondents submitted that the judgements of the Trial Court and
the High Court in the240 present round is correct in law and facts.
The earlier round of litigation initiated by the respondents was only with
respect to the constructions raised by the appellant which of course they
had lost. The respondents had throughout been in possession of the 8 cents of
land. The appellants were never in possession thereof. The judgement of the
Trial Court300 and that of the High Court deserves to be maintained.
In the judgement of the High Court in the first round dated
30.03.1990, it is not at one place but at number of places that
the High Court has recorded that the suit property comprised of 8 cents
of land which was the land purchased by the respondents in360 1974. It would be relevant
to refer to such facts noted in the said judgment.
In the light of the above facts, arguments
and findings recorded by the High Court in its judgment dated 30.03.1990, apparently
no400 defence was left
for the respondents to take as it was already held that the appellant had
perfected her rights by adverse possession over the suit property which was 8
cents of land. The construction of the appellant was standing over the 8 cents
of land, maybe on part of it, but she was found in possession of the entire 8
cents.
The respondents never sought any clarification of the findings of
the High Court or the observations made480 therein nor did they assail the same before any higher forum. The
judgement dated 30.03.1990 attained500 finality. Interpreting the said judgement which was clear in
itself any differently would clearly amount to judicial indiscipline. The Subordinate
Judge in its judgement dated 13.10.2003 had rightly observed that the Trial
Court had no business to interpret the judgement of the High Court dated
30.03.1990 in any other way than what was recorded therein.
The doctrine of merger is a common law doctrine that is rooted in
the idea of maintenance of the decorum of hierarchy of courts
and tribunals. The doctrine is based on the simple reasoning that there
cannot be,600 at the same time, more than one operative order governing
the same subject matter.
In the current case, as previously
mentioned, the High Court's judgment from the initial round dated 30.03.1990,
noted that the disputed property included 8 cents of land, not just the
building structure on it. As per the doctrine of merger, the judgments of the
Trial Court and the First Appellate Court from the first round of
litigation are absorbed into the High Court's judgment dated 30.03.1990.
This 1990 judgment should be regarded as the conclusive and
binding700 order from the initial litigation. Following the principles
of judicial discipline, lower or subordinate Courts do not have the authority720 to contradict the decisions of
higher Courts. In the current case, the Trial Court and the High Court, in
the second round of litigation, violated this judicial discipline by
adopting a position contrary to the High Court's final judgment dated
30.03.1990, from the first round of litigation.
The argument of the Counsel for respondents is mainly that the
judgment of the Trial Court and First Appellate Court in the first round of
litigation clearly stated in the case of the800 plaintiff that it was
with respect to the constructed portion only in which the mother of the
appellant was residing and not the whole area of 8 cents purchased by them. The
High Court committed a bona fide error in840 recording that the suit property was 8 cents along with
constructions standing over it. As such, the Trial Court and the High Court in
the present round were correct in limiting the decree only to the constructions
and not the entire area of 8 cents.
In order to test the above agreement, we
carefully examined the judgement of the Trial900 Court as also the First Appellate
Court. What is discernible is that nowhere is recorded the actual
boundary or the measurements of the property in possession of the mother of the
appellant. The respondents therein had based their case on the ground that they
had purchased 8 cents of open piece of land and the defendant therein
had raised construction960 over some adjoining land, and had trespassed over part of her
purchased land. We are unable to appreciate the said argument of the
respondents. Suit for possession has to describe the property in question with accuracy
and all details of1000 measurement and boundaries. This was completely lacking.
A suit for possession with respect to such a property would
be liable to be dismissed on the ground of its identifiability. Further,
it may be noted that if the construction by the defendant were not made
over 8 cents of purchased land, then the plaintiff therein would not have
a claim to possession of the same. The argument thus has to be rejected not
only on facts but also on legal grounds1080 as discussed above. The appeal is, accordingly, allowed. The
impugned judgment and order of the High Court is set aside1100 and that of the First Appellate
Court dated 13.10.2003 passed by the Subordinate Judge is restored and
maintained. 1118
