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Pandit Ram Krishna Vs. Shiam Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in5Ind.Cas.278
AppellantPandit Ram Krishna
RespondentShiam Chand and ors.
Excerpt:
civil procedure code (act v of 1008) section 11 - res judicata, oasis of identity of title, not identity of subject-matter. - .....to south vacated and for recovery of rs 4-8 on account of ground rent on the allegation that the land in dispute was situate within a grove near the asthan of panchor panda, that the grove belonging to the plaintiff in which the land in dispute was situate was according to theoldcertiiicite dated 1st shaban 1197 hijra, 49 lathas in length and 11 lathas in breadth and that after several transfers the s lid property came into the possession of the plaintiff. to that suit rim bhabhuti lal, sirbarahkar of the property of dharam chand and shiam chand, was made a defendant. the following issues were framed: (1) is the site of the grove the property of the plaintiff, 49 lathas in length and 11 lathas as average breadth, according to the old sale certificate? whether the plaintiff has up to.....
Judgment:

Karamat Husain, J.

1. This was a suit for possession of a house, which, as the judgment of the Court of first instance shows, included the site on which the house stood. The learned Munsif framed the folio wing issues: To whom does the disputed house belong and on whose land does it stand? Was there any litigation between the parties concerning this house? On those issues he found in favour of the plaintiff and gave him a decree. The following portion of his judgment is material for the disposal of this appeal. It is proved that the plaintiff had purchased the site and house as Tahalgir's house. The judgment between the ancestors of the parties, dated the 29th June, 1872 shows that the possession of the plaintiff's ancestors was right up to the house of Rama Singh and the temple of Hanumanji to the north. I, therefore, hold that the disputed house stands on the land purchased by the plaintiff as Bachcha Singh's house at an auction sale. The judgment dated 29th June 1872 shows that in that year there was a dispute between the parties concerning some land which also included the site of the disputed house and the disputed land.' The defendants appealed and the 4th plea in their memorandum of appeal was that 'the lower Court (Munsif) was not right in decreeing the plaintiff's claim with reference to the plan and the judgment, of 1872, The plan and the judgment aforesaid do not relate to the land in question nor are they admissible in evidence against these appellants.' The lower appellate Court found that Tahalgir's house is no longer in existence and that the land now in suit is not that on which Tahalgir's house stood. As to the judgment of 1872 that Court remarks: 'It is true that in 1872 the predecessor-in-title of the plaintiff respondent was held to be the proprietor of a considerable area within which the land (now in suit) undoubtedly falls. But only a very small portion of that area was then actually in suit and it is admitted that the land then in suit was quite different to the land that is now in suit. That decision, therefore, most certainly does not operate as res judicata.' With reference to the above findings, the lower appellate Court reversed the decree of the first Court. The plaintiff comes here in second appeal. The only point argued on his behalf is that the judgment of the Munsif of Benares, dated the 29th June 1872, operates as res judicata. A reference to that judgment shows that there was a suit by Ram Charan to have the site of a small room and a shed together with a platform in front thereof measuring 10 cubits from east to west and 6 cubits from north to south vacated and for recovery of Rs 4-8 on account of ground rent on the allegation that the land in dispute was situate within a grove near the asthan of Panchor Panda, that the grove belonging to the plaintiff in which the land in dispute was situate was according to theoldcertiiicite dated 1st Shaban 1197 Hijra, 49 Lathas in length and 11 lathas in breadth and that after several transfers the s lid property came into the possession of the plaintiff. To that suit Rim Bhabhuti Lal, sirbarahkar of the property of Dharam Chand and Shiam Chand, was made a defendant. The following issues were framed: (1) Is the site of the grove the property of the plaintiff, 49 lathas in length and 11 lathas as average breadth, according to the old sale certificate? Whether the plaintiff has up to the present time been in possession in accordance therewith or whether his possession his any how been disturbed? Has the grove land been, since the settlement, as the land measuring 41 lathas in length and 14 lathas in breadth and has the plaintiff no right what over contrary thereto? If it be held that the plaintiff has a right to the land to the extent of the length entered in the sale certificate, whether the land in question is within the grove property possessed by the plaintiff or outside and separate therefrom? (3) In the case the land in dispute is within the grove possesed by the plaintiff whether the defendant No. 1 settled therein with the plainitff's permission on payment of ground rent and is he in arrears of the annual ground rent or has been in proprietary possession for a long time and has never paid any ground rent? If it be foil ad that the said defendant settled there on payment of ground rent and is in arrears of it is the plaintiff entitled to get the land in question vacated by the defendant No. 1? (4) What amount of ground rent is due to plaintiff from defendant No 1. (5) Has the plaintiff in the present suit mentioned and claimed Zamindari rights? On the first, issue, the Munsif found that the plaintiff is found to have all along been in possession since the settlement of the grove land to the exent entered in the sale certificate. On the second point his finding is that the land of the house in dispute belonging to Bir Kalwar is within the plaintiff's grove land. On the 3rd point he found that the defendant No. 1 built the house on payment of ground rent. On the 4th he found that the sum of Rs. 4-8 was due by the defendant. On the above findings the Munsif gave the plaintiff a decree directing the land in question to be vacated by the removal of materials and the house and awarded Rs. 4-8 on account of ground rent together with interest. Having carefully read the judgment of the 29th June 1872. I am of opinion that that judgment, with reference to the finding of the lower appellate Court that the land in suit undoubtedly falls within the area of which the plaintiff was held to be the proprietor, operates as res judicata. It is, however, argued by the learned Vakil for the respondents that the dispute in 1872 related only to the site of a small room and a shed together with a platform in front there if and that, therefore, the finding of the Munsif in that case that the plaintiff was the owner of a considerable area which included the area then in dispute was not material for the decision of that case and that for the decision of that case it was sufficient to find that the plaintiff was the owner of the area then in dispute without recording any finding that he was the owner of a larger area, hi support of this contention he relies on Shib Charan Lal v. Raghu Nath 17 A. 174, which lays down that a finding in a judgment to operate as res judicata the Court being a Court of jurisdiction competent to try the subsequent suit, must be material and necessary to support the precise and particular ground or grounds on which the decree or some operative part of it was made.' The case before me is not governed by the rule laid down in the preceden relied on by the learned Vakil or the respondents. In the case, in which the judgment of the 29th June 1872 was passed, the plaintiff had claimed the ownership of the land then in dispute on a sale-certificate, dated the 1st Shaban 1197 Hijra. Under those circumstances, without a finding that the plaintiff was the owner in possession of the area, comprised in that sale certificate and that the land then in dispute formed part of that area a decree for possession of the disputed area could not have been given to the plaintiff. Therefore, a decision as to the ownership of the entire area covered by the sale-certificate was material and essential in that case. The lower appellate Court is, however, of opinion that although the plaintiff was held to be the owner of a considerable area which included the area now in dispute, yet as the subject-matter of the former suit was not identical with the subject-matter of the present suit, the former decision does not operate as res judicata. The view of the law taken by the lower appellate Court is erroneous. It is the identity of title and not the identity of subject-matter of the suit on which the doctrine of res judicata is based, see Chandi Prasad v. Maharaja Mahendra Mahendra Singh 24 A. 112. As the decision of the 29th June 1872 decided plaintiff's title to a considerable area in which the area now in dispute is included, the plaintiff's title to the area now in dispute cannot be re-agitated. The learned Vakil for the respondents further contends that the previous judgment of the 29th June 1872 was not between the parties whose representatives the present parties are. In the present litigation, Ram Kishun is the plaintiff who is admittedly the representative, of Ram Charan who was plaintiff in the former litigation. The defendants are Shiam Chand, and Dhanushdhari, Chhatardhari and Tara Chand, sons of Dharam Chand. The previous judgment shows that Ram Bhahbuti or Ram Mohan, whichever may be the correct name, the sarbarahkar of the milak of Dharam Chand and Shiam Chand, was made a defendant to the former suit. There is nothing to show that Dharam Chand and Shiam Chand, who were minors at that time, were not properly represented. The fact that the learned Munsif in this case regarded the previous judgment as between the ancestors of the parties to which no exception was taken by the defendants in their appeal to the lower appellate Court, and that the lower appellate Court did not regard that judgment as not operative by way of res judicata on the ground that it was not inter partes but on the ground that it related to a different subject-matter, shows that it was between the ancestors of the same parties.

2. The result is that I allow the appeal, discharge the decree of the lower appellate Court and restore that of the Court of first instance with costs in all Courts.


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