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Naurati and ors. Vs. Mehma Singh - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 364 of 1971
Judge
Reported inAIR1972P& H421
ActsCode of Civil Procedure (CPC), 1908 - Sections 10
AppellantNaurati and ors.
RespondentMehma Singh
Cases ReferredAkola v. Harikishan
Excerpt:
.....issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other court of india having jurisdiction to grant the relief claimed, or in any court beyond the limits of india established or continued by the central government and having like jurisdiction or before the supreme court. this essential requirement for the applicability of section 10 has, therefore, not been satisfied in the instant case. the test of res judicata, therefore, is not satisfied in this case i am saying this, because in a bench decision of this court in raj spg. harikishan, air 1948 nag 297. this test is, in my opinion, satisfied in the..........in the union territory of chandigarh. sahib ditta died on 26th september, 1954. on 15th june, 1967 mehma singh sold 12 marlas, out of khasra no. 62, to labh singh and piara singh. in october, 1967 the vendees filed a suit against naurati and six others for an injunction restraining the defendants from interfering with their possession over the property sold to them by mehma singh. their allegations were that they were the owners of this property by virtue of the sale effected in their favour by mehma singh. the suit was contested by naurati and the other defendants. she claimed ownership on the ground that the property originally belonged to her father sahib ditta and after his death, the said property devolved on her. as regards the other defendants, the case of one of them, namely,.....
Judgment:
ORDER

1. The following pedigree-table will be helpful in understanding the facts of this case:--

2. Sahib Ditta, indisputably, was the owner of the land, measuring 1 Kanal, 3 Marlas, comprised in Khasra No. 62, situate in village Dhanas, in the Union Territory of Chandigarh. Sahib Ditta died on 26th September, 1954. On 15th June, 1967 Mehma Singh sold 12 Marlas, out of Khasra No. 62, to Labh Singh and Piara Singh. In October, 1967 the vendees filed a suit against Naurati and six others for an injunction restraining the defendants from interfering with their possession over the property sold to them by Mehma Singh. Their allegations were that they were the owners of this property by virtue of the sale effected in their favour by Mehma Singh. The suit was contested by Naurati and the other defendants. She claimed ownership on the ground that the property originally belonged to her father Sahib Ditta and after his death, the said property devolved on her. As regards the other defendants, the case of one of them, namely, Baru son of Dyal (it ought to be Dyal son of Baru) was that he was the tenant of Naurati. So far as the rest were concerned, they said that they had unnecessarily been impleaded as defendants. In December, 1968, this suit was dismissed on the finding that Naurati was the heir of her father Sahib Ditta and the property in dispute had devolved on her after her father's death and Mehma Singh had nothing to do with it and, consequently, he had no right to sell the same in favour of Labh Singh and Piara Singh. Aggrieved by that decision, the vendees filed an appeal and the same was accepted by the learned District Judge, Chandigarh, who held that although the property belonged to Sahib Ditta, but on his death, it devolved on his nephews Mehma Singh and Dhanna in equal shares and his daughter was not his heir regarding this property. Naurati then came to this Court in second appeal (Regular Second Appeal No. 623 of 1970) and that is still pending here.

3. On 7th May, 1970, Mehma Singh brought a suit against Naurati, Dyal son of Baru and one Joginder Singh for possession of the remaining 11 Marlas, out of Khasra No. 62 on the ground that 12 Marlas, out of this very Khasra number, had already been sold by him to Labh Singh and Piara Singh and the remaining 11 Marlas were illegally in possession of Dyal and Joginder Singh, who claimed their rights from Naurati. As he was the real heir of Sahib Ditta, his brother Dhanna having died issue less, the entire land devolved on him.

4. The suit was contested by Naurati as well as the other two defendants. Naurati was claiming ownership of the land and the position of the other two was that they were her tenants. All the defendants objected that the second suit was liable to be stayed under the provisions of Section 10, Code of Civil Procedure, because the matter in issue was also directly and substantially in issue in the previous suit between the same parties.

5. One of the issues framed in the case was whether the suit was liable to be stayed under Section 10, Code of Civil Procedure.

6. By his order dated 28th January, 1971, the trial Judge decided this issue against the defendants and held that the said suit was not liable to be stayed under Section 10, Code of Civil Procedure. Against this order, the present revision petition has been filed by the defendants in the second suit.

7. Section 10 of the Code of Civil Procedure says:

'No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court of India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction or before the Supreme Court. Explanation. .x x x x'

8. It has been laid down in a number of rulings that the object of the rule contained in this section is to prevent Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject-matter and the same relief. The policy of the law is to continue the plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same Court in respect of the same relief. (See in this connection Balkishan v. Kishan Lal, (1889) ILR 11 All 148; Karnal Distillery Co. Ltd. v. L. P. Jaswal, AIR 1951 Simla 275; and F. E. Dinshaw v. John Carapiet Galstaun, AIR 1927 Bom 245). According to this section, one of the essential conditions for the applicability of this section is that both the suits must be either between the same parties or between the parties under whom they or any one of them claim.

9. In the instant case, from the facts given above, it is clear that the parties in both the suits were not the same. Nor the point for decision is whether these two suits were between the parties under whom they or any of them claim. It has been mentioned in Chitaley's Civil Procedure Code, VIIth Edition, Volume I, on page 347-

' 'Parties under whom they or any of them claim' comprised two classes of persons--(1) parties actually claiming under a party to the previous suit and (ii) parties who were represented by a party in a previous suit in respect of a public right or of a private right, claim in common for such person and others.'

10. The present case, obviously, is not covered by the class of persons mentioned in (ii) above. It is covered by the class of persons specified in (i) above? The reply has to be in the negative, because the plaintiff in the second suit, namely, Mehma Singh, was not claiming under the plaintiffs of the first suit. It were Mehma Singh's vendees, who had instituted the first suit against Naurati and six others for an injunction restraining the defendants from interfering with their possession over the property sold to them by Mehma Singh. It can, therefore, be said that the plaintiffs of the first suit were claiming their title under the plaintiff of the second suit, but the reverse is not true. Therefore, it has to be held that the parties in the second suit were not claiming under a party to the previous suit. This essential requirement for the applicability of Section 10 has, therefore, not been satisfied in the instant case.

11. Then again, it is apparent that main point to be decided in both the suits as to who is the legal heir of Sahib Ditta, because the property in dispute in both the cases, admittedly, belonged to him. According to the petitioners, Sahib Ditta's heir was his daughter Naurati petitioner, whereas, according to the respondent, he and his brother Dhanna (who died issue less) the nephews of the deceased, were his heirs under the law and Naurati could not succeed to his property. If in the first suit, this question is settled one way or the other, that finding cannot bind Mehma Singh, the plaintiff in the second suit, for the simple reason that neither was he a party to the previous proceedings and nor was he deriving his title from any of the parties to the previous suit. The test of res judicata, therefore, is not satisfied in this case I am saying this, because in a Bench decision of this Court in Raj Spg. Mills, Amritsar v. A. G. King Ltd., Excelsior Mills, AIR 1954 Punj 113, it was observed:

' * * This shows that the matter in issue in the two suits is directly and substantially the same and therefore the test of 'res judicata' which has been applied in several cases would be relevant in this case also. This test was laid down by the Calcutta High Court in Smt. Jinnat Bibi v. Howrah Jute Mill Co. Ltd., AIR 1932 Cal 751 (A), where Patterson, J. said at page 752:

'One test of the applicability of Section 10 to a particular case is whether on the final decision being reached in the previous suit, such decision would operate as 'res judicata in the subsequent suit and there can be no doubt that if this test is applied Section 10 must be held to be applicable to the present case.' The same rule was laid down by Padhye, J., in Laxmi Bank Ltd., Akola v. Harikishan, AIR 1948 Nag 297. This test is, in my opinion, satisfied in the present case.'

12. Apart from anything else, on the above grounds alone, it can be held that the provisions of Section 10 are not applicable to this case and the trial Judge had correctly decided that the suit was not liable to be stayed under Section 10, Code of Civil Procedure.

13. The result is that this petition fails and is dismissed. There will, however, be no order as to costs.

14. Petition dismissed.


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