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Hazari Singh Vs. Jhunna Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1931All21
AppellantHazari Singh
RespondentJhunna Singh and ors.
Excerpt:
- - that is perfectly a sound judgment, if we can say so with respect......suit did not operate as res judicata and decreed the plaintiff's claim partially.5. on second appeal the learned single judge of this court applied the case of tamizunnissa bibi v. mohammad hussain : air1928all127 , and held that the former judgment did operate as res judicata although the present suit was properly valued and it was not within the cognizance of the munsif. in letters patent appeal two points have been raised. the first point is that in the second suit the plaintiff was not litigating under the same title and secondly that the former judgment was delivered by a court which was not competent to take cognizance of the second suit. in our opinion, both the points have force and the appeal must be decreed.6. the former suit, as already stated, was based on the ground.....
Judgment:

Mukerji, J.

1. This is an appeal against a judgment of a learned single Judge of this Court, who gave effect to the plea of res judicata in second appeal and dismissed the plaintiff's suit.

2. It appears that the plaintiff claimed a share in a certain property. He instituted two suits. In the first suit he stated that the property belonged to one Kauleshar, that on his death the widow Mt. Kali Kunwar was in possession as a Hindu widow, and that on her death as a reversioner to the estate of Kauleshar he was entitled to the property. The suit was filed in the Court of the Munsif of Azamgarh and was dismissed on the sole ground that the property did not belong to Kauleshar, but had belonged to Kali Kunwar who was the absolute owner of the property.

3. Thereupon the plaintiff instituted the suit out of which the present appeal has arisen on the allegation that he was one of the heirs of Kali Kunwar and he was entitled to a share in the property. The present Suit was filed in the Court of the Subordinate Judge of Azamgarh.

4. The lower appellate Court has found that the valuation of the present suit was a correct one, that the former suit had really been under-valued and should not have been filed in the Court of the Munsif of Azamgarh. On this ground he held that the former suit did not operate as res judicata and decreed the plaintiff's claim partially.

5. On second appeal the learned single Judge of this Court applied the case of Tamizunnissa Bibi v. Mohammad Hussain : AIR1928All127 , and held that the former judgment did operate as res judicata although the present suit was properly valued and it was not within the cognizance of the Munsif. In Letters Patent appeal two points have been raised. The first point is that in the second suit the plaintiff was not litigating under the same title and secondly that the former judgment was delivered by a Court which was not competent to take cognizance of the second suit. In our opinion, both the points have force and the appeal must be decreed.

6. The former suit, as already stated, was based on the ground that the property belonged to Kauleshar. It was found that it did not belong to Kauleshar but to somebody else. The plaintiff then says that he is also an heir to that somebody else, namely Mt. Kali Kunwar, and he brings his suit. In the second suit, therefore, the plaintiff is not litigating under the same title. His suit would, therefore, be maintainable, and the former judgment would not operate as res judicata. The learned Counsel for the appellant has relied on the case of Kanhaiya Lal v. Ashraf Khan A.I.R. 1924 All. 355. That judgment supports the appellant's contention. On the second point also we think the appellant ought to succeed. It is true that in the former suit the valuation was put on the property by the plaintiff himself. But in the matter of jurisdiction-there cannot be any estoppel simply because the plaintiff under-valued his suit. There was the defendant to point out that the suit had been under-valued. It is the finding of fact in the present litigation that the value of the second suit exceeded Rs. 1,000 and therefore, it could not be taken cognizance of by the Munsif. In the case relied on by the learned single Judge the converse proposition was held to be correct. It was held that by exaggerating the value of the second suit a party could not get rid of the application of the rule of res judicata. That is perfectly a sound judgment, if we can say so with respect. In that case it appears that the value put on the property was something more than the value of the former suit. The former suit was within the cognizance of the Munsif and the Munsif had jurisdiction up to Rs. 1,000. In the second suit the valuation put was Rs. 1,350 and the. learned Judges found that the later valuation was arbitrary. That being their opinion, the learned Judges rightly held that by giving an arbitrary value to the second suit the operation of the judgment of the first suit could not be got rid of.

7. On both points the appeal succeeds. We allow the appeal, set aside the judgment of this Court and restore the decree of the lower appellate Court. The appellant will have his costs at both hearings in this Court.


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