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Jiwa Ram and anr. Vs. Kalyan and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in9Ind.Cas.983
AppellantJiwa Ram and anr.
RespondentKalyan and ors.
Excerpt:
.....suit. it was no doubt held by the court of first instance in the earlier litigation that the plaintiffs failed to prove their relationship to dhani ram and inferentially their relationship to bhojraj, who was dhani ram's brother, but the finding that the property was not the property of dhani ram was fatal to the plaintiffs' case. in this case the finding of the appellate court in the earlier litigation that the property claimed by the plaintiffs was not the property of dhani ram was fatal to the success of the plaintiffs' suit......that it belonged to dhani rani, who is said to have been the brother of bhojraj. in that suit the plaintiffs relied upon a pedigree showing the relationship of the parties. the court of first instance held in it that the relationship was not established and dismissed the suit. on appeal, the lower appellate court found that the property did not belong to dhani ram but was the property of bhojraj and accordingly' dismissed the appeal. in the suit out of which this appeal has arisen, the plaintiffs do not claim the property as heirs of dhani ram but as heirs of bhojraj and as the property of bhojraj. the finding in the earlier suit that the property was not the property of dhani ram was fatal to the plaintiffs' suit. there was no finding that the plaintiffs were not the heirs of.....
Judgment:

1. The plaintiffs in the suit out of which this appeal arises claimed to be entitled to the property which formerly was in the ownership of Bhojraj, deceased. The defendant first party claims to be the owner of the property under a gift from Musammat Ram Kuar, the daughter of Bhojraj. Ram Kuar is dead The Courts below held that the plaintiff's suit was barred by the rule of res judicata and the decision of this Court was upheld by the learned Judge of this Court against whose decree this appeal has been preferred under the Letters Patent. The former suit was a suit by the plaintiffs against Ram Kuar for recovery of the property in dispute on the allegation that it belonged to Dhani Rani, who is said to have been the brother of Bhojraj. In that suit the plaintiffs relied upon a pedigree showing the relationship of the parties. The Court of first instance held in it that the relationship was not established and dismissed the suit. On appeal, the lower Appellate Court found that the property did not belong to Dhani Ram but was the property of Bhojraj and accordingly' dismissed the appeal. In the suit out of which this appeal has arisen, the plaintiffs do not claim the property as heirs of Dhani Ram but as heirs of Bhojraj and as the property of Bhojraj. The finding in the earlier suit that the property was not the property of Dhani Ram was fatal to the plaintiffs' suit. There was no finding that the plaintiffs were not the heirs of Bhojraj. This being so, we fail to see how the decision in the earlier suit operates as res judicata in the present suit. It was no doubt held by the Court of first instance in the earlier litigation that the plaintiffs failed to prove their relationship to Dhani Ram and inferentially their relationship to Bhojraj, who was Dhani Ram's brother, but the finding that the property was not the property of Dhani Ram was fatal to the plaintiffs' case. It was held in the case of Shib Charan Lal v. Raghunath 17 A. 174 to which one of us was a party, that if there are two findings of fact either of which would justify in law the making of a decree, that one of such two findings of fact which should in the logical sequence of necessary issues have been first found and the finding of which would have rendered the other of such two findings unnecessary for the making of the decree which was made, is the finding which can operate as res judicata. In this case the finding of the Appellate Court in the earlier litigation that the property claimed by the plaintiffs was not the property of Dhani Ram was fatal to the success of the plaintiffs' suit. This finding operated as res judicata. Any other incidental finding would not so operate. In this view we are of opinion that the learned Judge of this Court and also the Courts below were wrong in dismissing the plaintiffs' suit as barred by the rule of res judicata. We allow the appeal and as the suit was determined on a preliminary point, we set aside the decrees of this Court and also of the Courts below and remand the suit to the Court of first instance through the lower Appellate Court under the provisions of Order XLI, Rule 23 and direct that it be re-admitted on the file of pending suits under its original number and be determined according to law, The costs here and hitherto will abide the event. The costs in tin's Court will include fees on the higher scale.


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