Nazakat Ali Khan vs Saleem Khan and Others

Sharad Kumar Sharma, J.

The petitioner is a defendant in a Suit No. 20/2017 ‘Saleem Khan & Others vs. Nazaqat Ali Khan & Others’. On institution of the said Suit

the defendant/petitioner had filed an application Paper No. 17 ga on 05.05.2017 raising a preliminary objection with regards to the maintainability of

suit for declaration, wherein, the following relief was sought:

“32. That the plaintiffs therefore pray:-

(i) That passing a decree for declaration in favour of the plaintiffs and against the defendants, it may kindly be declared that the plaintiffs under law

having inherited the suit property from their ancestor Late Shri Achchan Khan S/o Late Abdul Qadir Khan under his purchase vide the sale deed

dated 04.12.1935 as detailed and specified in the para No. 1 of the plaint and the plaintiffs are the exclusive owners of the same property under the

sale deed and the defendant No. 1 has no right, title or interest whatsoever in respect of any of the properties left behind by Late Shri Achchan Khan

or his widow Late Smt. Chhunni Begum in any manner whatsoever.â€​

The argument of the petitioner was in the light of the adjudication made by this Court in the earlier Writ Petition being Writ Petition (M/S) No.

598/2006 ‘Saleem Khan & Others vs. Nazaqat Ali Khan and Others’. This Court in the earlier phase of litigation has already held that in view

of the judgments rendered in a Suit for declaration No. 22/1971 under Section 180 of U.P. Tenancy Act, which was stood decreed on 13.01.1971 and

affirmed in Appeal No. 11 of 1971 with its dismissal and Suit No. 209/1970 for partition and declaration, which has attained finality upto the second

appellate stage, would operate as the res judicata in any subsequent proceedings having an element of declaration of right. This Court in paragraph 14

& 15 has made the following observations:

“5. The fact which is born out from the records and as argued by Mr. B.P. Nautiyal, learned Senior Counsel for the respondent no. 1 is that there

had been set of proceedings for declaration of rights inter-se between the parties by invoking Section 180 of U.P. Tenancy Act, 1939, for getting the

possession over the property in question which was registered as case No. 22 of 1971 which was decreed on 13.01.1971. Against the decree dated

13.01.1971, an appeal was preferred which was numbered as Appeal No. 11/1971, this appeal too was dismissed. Against which the matter traveled

to the Board of Revenue in Second Appeal No. 57/1970-71 which too was dismissed, hence as a matter of fact, the issue pertaining to the

dispossession under Section 180 of U.P. Tenancy Act has attained finality because as per the arguments extended by Mr. B.P. Nautiyal, Senior

Advocate for the respondent no. 1, the Second Appellate Courts order rendered in the proceedings under Section 180 on 07.10.1971 has attained

finality as it has not been challenged before any superior court thus parties to the proceedings or any one claiming under the parties are bound by it.

Being aggrieved against the report dated 3.11.1999, the contention of the learned counsel for the respondents had been that the report dated

03.11.1999, since runs contrary to the un-controverted findings recorded in the civil suit as well as in the suit under Section 180 of U.P. Tenancy Act

is unsustainable and there was another ground which was agitated was that the subsequent report dated 3. 11.1999 would operate as a res judicata

because of the bar created by the judgment renders in the suit under Section 180 of the Act and the suit for declaration and partition of rights. The

revision preferred by the respondent against the order dated 03.11.1999 which as per the respondent was contrary to records against the issues

already determined earlier would operate as res judicata has been allowed by the impugned order dated 14.08.2002 which has been challenged by the

petitioner in this writ petition.

The principles enunciated under the philosophy of res judicata it finds place in the Indian legal history since age long tradition. The intention of the

principles of res judicata is to provide a rule of conclusiveness of the judgment which is based upon the maxim. It is also based upon the principles that

there has to be an end of litigation between the parties. Meaning thereby a party to a law suit should not be entangled in litigation cumulatively. Thus in

accordance with the idiom, it provides that there has to be an end of litigation. These principles of res judicata are based upon equity, justice and good

conscience. The intention behind is it prevents a new decision between the same parties and also prevents an investigation amongst the same party for

the same cause so that the other party may not be harassed again and again at various proceedings on the same question of law and fact. Thus, the

principles of res judicata will be applicable as a Rule of a public policy for giving finality to the order and for avoiding multifarious litigation.â€​

The said judgment whereby the Court held any subsequent proceedings after the adjudication of rights made under Sections 180 and 59 of the U.P.

Tenancy Act to be barred by the res judicata thereafter the present Suit has been filed by the respondent. On the objection raised by the present

petitioner by way of paper no. 17 ga the same has been decided by the learned Civil Judge (S.D.) by the order dated 20.07.2018 impugned with the

following observations:

“vr% ,sls fookfnr rF;ksa dk fuLrkj.k rks i=koyh ij i{kdkjksa ds vfHkopuksa ds izLrqr gksus ds mijkUr gh fof/kuqlkj fd;k tk ldrk gS] ;gka ;g Hkh mYys[kuh; gS fd

izfroknh fnukad 07-04-2017 dks U;k;ky; esa izFke ckj mifLFkr gqvk] fdUrq mlds }kjk vkt fnukad rd dksbZ Hkh izfrokn i= izLrqr ugha fd;k x;k gSAâ€​

Although as per the observa(cid:22)ons made in the impugned order, the Court below has observed that the issue pertaining to the applicability of Sec(cid:22)on 10 & 11

of the Code of Civil Procedure will be decided a(cid:38)er framing of issues and a(cid:38)er enabling the par(cid:22)es to place their respec(cid:22)ve cases before the Court below. There

is no doubt about it that ques(cid:22)on of res judicata is a mix ques(cid:22)on of Act and law. But, in the peculiar facts of the instant case, as having held so that the

principle of res judicata in rela(cid:22)on to the subject ma(cid:44)er of the Suit already stood adjudicated in the earlier proceedings of Sec(cid:22)on 180 and 59 of the U.P.

Tenancy Act, the same would be considered by the learned Trial Court, by framing a specific issue, as a preliminary issue before venturing into the other issues

on merits of the matter.

Subject to the above observations, the Writ Petition stands disposed of.