Sh. Sudarshan Kumar Beri vs Sh. Mahesh Kumar and Others

J.V. Gupta, J.—This is Plaintiff''s appeal whose suit for possession has been dismissed by the trial Court.

Sudarshan Kumar Beri Plaintiff filed the suit against his brother Mahesh Kumar and Subhash Chander and their mother Sumatya Devi, seeking a decree for possession of house No. B. XIII-1660 alleging that he, Mahesh Mukar and Subhash Chander are the sons of Bhim Sain who died in the year 1952; that after his death, the Plaintiff had been living separately from the Defendants and had been running his separate business ; that the Plaintiff purchased the house, in dispute, from the District Rent and Managing Officer through public auction and in this way become the owner of the house as per conveyance deed dated 31.10.1960; that the Plaintiff remained in possession of the property.

In dispute, since 1962 as owner while the Defendants were residing in house No. B. XIII-1661 as tenants under Darshan Singh landlord; that the Defendants became jealous and they could not tolerate that the Plaintiff was prospering by dint of hard labour and they started picking up quarrels with the Plaintiff on lame excuses; that the relations between the parties became strained and hostile and the Defendants involved the Plaintiff in a false case under Sections 107/151 of the Code of Criminal Procedure in August 19 ?2 when the Plaintiff was arrested and he remained in judicial lock up for five days; that during his absence the Defendants forcibly took possession of the house, in dispute, and that thereafter the Defendants filed a suit, alleging themselves to be joint owners with the Plaintiff of the house, in dispute, in the Court of Sub Judge 1st Class, Ludhiana. In that suit, vide judgment dated 30.9.1963 (copy Exhibit P. 11) it was held that the Plaintiff was the exclusive owner of the house, in dispute, even prior to the said suit. The Defendants also tiled another suit for permanent injunction against the Plaintiff, which was decided on 20.8.1963, vide copy of judgment Exhibit P-9 wherein it was held that the Defendants were not entitled to remain in possession of the house, in dispute, and were in illegal possession thereof Since the Defendants did not vacate the house, in dispute, hence the present suit was filed on 29-12-1972. The suit was contested by the Defendants on the ground that the house, in dispute, was an evacuee property and had been allotted to Bhim Sain their father. Bhim Sain was paying rent and that he and his three sons constituted a joint Hindu family and the house, in dispute, was purchased by the Plaintiff Sudarshan Kumar Beri for and on behalf of the joint Hindu family out of the funds of the joint Hindu family. The conveyance deed was got issued in the name of the Plaintiff Sudarshan Kumar Beri because he was the Karta of the family. The allegations that the Defendants took possession forcibly were denied. Rather it was asserted that the Plaintiff and the Defendants had been in possession of the house, in dispute, from the very beginning. It was claimed that the judgments in the earlier suits were not binding on the Defendants, particularly Subhash Chander who Mas a minor at that time and had been sued through his mother Sumatya Devi. According to the Defendants, Sumatya Devi was grossly negligent in conducting the earlier cases on behalf of the minor as she had not produced material evidence which was available and had an important bearing on the point in issue.

On the pleading of the parties, the trial Court framed the following issues:-

Whether the Plaintiff is the exclusive owner of the property, in dispute ?

Whether the judgments dated 30-9-1963 and 20-8-1963 are not binding on the Defendants ?

Relief.

The most material issue was issue No 2 on which the trial Court found that the judgments in the earlier suits, i.e., copies Exhibits P-9 and P-11, were not binding on the Defendants and did not operate as res judicata. Under issue No. 1, the trial Court concluded that the Plaintiff has failed to prove that the house, in dispute, was his exclusive property rather it stands firmly established that it was the joint Hindu family property having been purchased out of the funds of the Hindu family. As a result, the suit was dismissed.

Learned Counsel for the Plaintiff-Appellant vehemently argued that the earlier judgment, copy Exhibit P-11, is binding on the parties and operates as res judicata. According to the learned Counsel, in the earlier suit, all the four heirs of Bhim Sain, i.e , three sons and their mother, were parties thereto. In that suit. Mukesh Kumar Defendant claimed what the house, in dispute, was the joint Hindu faimly property and he had one-fourth share therein. Subhasn Chander Defendant and their mother Sumatrya Devi supported the claim of the Plaintiff and filed their written statement accordingly. The suit was contested by Sudarshan Kumar Beri, (Defendant in that suit) and now the Plaintiff. In the said suit, there were two main issues as to whether the suit was bad for partial partition and whether the house in dispute, was the joint Hindu family property of the parties. Both the issues were decided against the Plaintiff Mahesh Kumar and in favour of the Defendants. It was held therein that the suit was bad for partial partition and the Plaintiff had failed to prove that the house, in dispute, was purchased out of the joint Hindu family funds and was therefore, joint. In view of these findings, the Plaintiff''s suit was dismissed. Thus, argued the learned Counsel, in view of the dismissal of that suit, the findings given therein are binding on the parties and operate as res judicata. The view taken by the trial Court in this behalf, according to the learned Counsel, was erroneous in law and was liable to be set aside. On the other hand, learned counsel for the Respondents argued that in the earlier suit Subhash Chander was a minor and was represented by her mother Sumatya Devi but since she was grossly negligent in not producing the material evidence in that suit, she said judgment was not binding on Subhash Chander. According to the learned Counsel, the Defendant Subhash Chander was entitled to ignore that judgment in view of the provisions of Section 44 of the Indian Evidence Act, In support of this contention, he referred to AIR 1946 Lahore 233 Chatrati Sri-rnmamurthiv. Official Receiver, Krishna AIR 1957 A.P. 367, Narayanan Nambooripad and Others Vs. Gopalan Nair and Another, , Vellappan Vs. Peter Thomas, , and Irana Laxmana Mugali v. Satyappa Mugali 7 Indian Cases 967 .

After hearing the learned Counsel for the parties and going through the case law cited at the Bar. I am of the considered view that the the earlier judgment, copy Exhibit P. 11, operated as res judicata between the parties. Admittedly, this very house was the subject-matter of dispute in that suit when Mahesh Kumar Defendant claimed one-fourth share therein, alleging the same to be the joint Hindu family property. The said claim was duly supported by their mother Sumatya Devi as well as by Subhash Chander Defendant who was minor at that time and was sued through his mother as the next friend. There was a specific issue as to whether the house, in dispute, was the joint Hindu family property of the parties. The trial Court, after discussing the entire evidence led by the parties, had given a categoric finding that the Plaintiff had failed to prove that the house in dispute was purchased out of the joint Hindu family funds and was, therefore, joint, as claimed by Mahesh Kumar. Of course, there, one of the pleas taken by Sudarshan Kumar Beri, (Defendant in that suit) was that the suit was also bad for partial partition and the finding thereon was also given against the Plaintiff in that suit. Simply because the finding as to the partial partition was given, it will not make any difference because the suit was not dismissed on the ground that it was bad for partial partition. The suit was ultimately dismissed on merits and the efore, it does operate as res judicara between the parties. The very purpose of Section 11 of the CPC is that the parties should not be allowed to agitate the same point time and again. Any issue decided between the parties in a suit earlier will be binding subsequently u/s 11 of the Code of Civil Procedure. The mere fact that the some evidence which could be produced was not produced was itself no ground to hold that the judgment was not binding on the minor Subhash Chander The question of gross negligence on the part of the mother of the minor, as maintained by the learned Counsel for the Defendant-Respondents, did not arise in the present case. The interest of the mother as well as of Subhash Chander minor and also of the Plaintiff Mahesh Kumar was the same It was not a suit brought against the minor Defendant as such; rather the interest of the minor Defendant was the same as that of the Plaintiff Mahesh Kumar and Subhash Chander minor supported the claim of the Plaintiff. That being so, the question of any negligence, much less gross negligence, on the part of the mother Sumatya Devi who appeared in the witness-box to support the claim of her son Mahesh Kumar, did not arise. Even in Chatrati Sriramamurthi''s case (supra) relied upon by the learned Counsel for the Defendant-Respondents, it was held that the negligence of the guardian must be so serious or of such a character as to justify the inference that the minor''s interests were not at all protected and in substance, though not in form, the minor went unrepresented at the trial. As observed earlier, this was not the position as regards the facts of the present case. The interest of the Plaintiff Mahesh Kumar in that suit and that of his brother Subhash Chander minor and their mother Sumatya Devi was one and the same. All the necessary evidence in his possession was produced by the Plaintiff Mahesh Kumar but, in spire of that, he failed in that suit. Having once failed and getting a decision that the house, in dispute, was not the joint Hindu family property, the same question could not be reagitated in this suit filed by Sudarshan Kumar Beri in view the provisions of section II of the Code of Civil Procedure.

Apart from that, the Defendants did not claim any issue in the present suit as to whether the guardian of the minor Subhash Chander was grossly negligent in conducting the earlier suit. Since it was a question of fact which could be proved only by leading evidence and having failed to claim any issue, the Defendants could not be allowed to agitate at the time of the arguments that the mother Sumatya Devi was grossly negligent because she did not produce the material evidence. Even if Subhash Chander was minor, the said judgment was binding on Mahesh Kumar and his mother Sumatya Devi and the interests being common of all of them, no fault could be found with the earlier judgment and the same would be binding on all the parties to the suit.

In Irawa Laxman Mugali''s case (supra), the suit was rejected as being under-valued though findings were also given on merits. In that context, it was held therein that since the suit was dismissed as being under-valued, any finding given on merits was not binding on the parties in subsequent litigation. This was not the position as regards the facts of the present case. Here, the earlier suit was not dismissed because of partial partition though this was one of the issues in that suit. The suit was ultimately dismissed on merits and, therefore, the cases in which the suit was dismissed either being under-valued or being premature will not be of any assistance to the Defendant-Respondents.

The view taken by the trial Court in this behalf was wholly erroneous and was misconceived. Thus, the finding on issue No. 2 is liable to be set aside and it is held that the earlier judgment, copy Exhibit P-11, is binding on the parties and operates as res judicata.

In view of this finding, the finding under issue No I becomes irrelevant. However, the trial Court, after discussing the entire evidence, has given a finding that the Plaintiff-Appellant has failed to prove that the house, in dispute, was his exclusive property. But, as observed earlier, the finding in the earlier suit was in favour of the Plaintiff Appellant and if that operates as res judicata, then his suit is to be decreed on that ground alone.

As a result of the above discussion, the appeal succeeds, the judgment and decree of the trial Court are set aside and the Plaintiff-Appellant''s suit is decreed with costs.