1. This is defendants' second appeal against whom suit for joint possession was dismissed by the trial Court but was decreed in appeal.
2. Buta Singh had two daughters and five sons. On 31-3-1970 Buta Singh gave away the suit land by a registered gift deed in favour of his grandson Gurdip Singh son of Ujjagar Singh. The plaintiffs who are the other sons of Buta Singh challenged the said gift deed by filing the usual customary suit alleging that the parties were governed by custom in the matter of alienation and that the suit land being ancestral Buta Singh was not competent to make the gift and thus it will not affect their reversionary rights. The said suit was decreed by the trial Court on 21-7-1971. Gurdip Singh filed an appeal against the said judgment and decree on 21-8-1971. During the pendency of the appeal the Punjab Customs (Power to Contest) Act, 1920 was amended by virtue of Punjab Act No. 12 of 1973. On account of the amendment made, S. 6 of the principal Act was omitted and in S. 7 of the principal Act for the words 'non-ancestral immovable property' the words 'immovable property whether ancestral or non-ancestral were substituted. In view of the said amendment, the learned District Judge accepted the appeal and set aside the judgment and decree of the trail Court and thus dismissed the plaintiffs suit. The certified copy of the judgment dt. 17-11-1973 is on the record. It reads as under:-
'This is a case under custom for challenging an alienation of ancestral property. The law entitling a reversioner to challenge a sale under custom has since been repealed. In view of the decision in Gurdial Singh v. Piara Singh (1973 Cur LJ 529) such a suit is not maintainable now. Accordingly the appeal is accepted and the judgment and decree of the trial Court are set aside and suit dismissed. Parties shall bear their own costs throughout. Announced. File be consigned to the Record Room.
3. The plaintiffs now filed the present suit on 12-5-1976 challenging the said very gift dt. 31-3-1970 alleging that they are governed by Hindu law and the suit property being coparcenary property Buta Singh was not competent to alienate the same. The said suit was contested on behalf of the donee, inter alia, on the ground that the present suit was barred on the principles of res judicata. The other allegations were also controverted. The trial Court found that the suit was barred both on the principles of res judicata as well as constructive res judicata. It was further held that the plaintiffs and Buta Singh did not constitute joint Hindu family and the property in dispute was ancestral only to the extent of 1/8th share in the hands of Buta Singh. It was further held that the gift deed executed by Buta Singh was valid. In view of these findings the plaintiffs' suit was dismissed. In appeal the learned Additional Distirct Judge reversed the said findings of the trial Court and came to the conclusion that the present suit was not barred on the principles of res judicata nor on the principles of constructive res judicata nor under O. 2, R. 2. It was further found that the plaintiffs and Buta Singh constitute joint Hindu family though they belong to prominent agricultural tribes of Punjab. According to the lower appellate Court, there is presumption under the Hindu law that every Hindu family is joint unless proved otherwise. In view of this finding it was concluded that the gift to the extent of 1/6th share in favour of Gurdip Singh defendant was valid whereas the gift to the extent of 5/6th share was invalid. Consequently, the suit was decreed accordingly. Dissatisfied with the same, the defendant has filed this second appeal in this Court.
4. The main controversy in this appeal is whether the present suit is barred both on the principles of res judicata as well as on the principles of constructive res judicata or not. It is common case of the parties that the plaintiffs filed the earlier suit claiming that they were governed by custom in the matter of alienation and since the land gifted was ancestral immovable property and the plaintiffs were competent to challenge this alienation in view of the provisions of S. 6 read with S.7, Punjab Customs (Power to Contest) Act 1920. Admittedly, that said suit was decreed by the trial Court as it was held that the parties were governed by custom in the matter of alienation and that the suit property being ancestral, the gift made by Buta Singh in favour of his grandson Gurdip Singh was invalid. It was during the pendency of the appeal that the said principal Act of 1920 was amended by virtue of Act No. 12 of 1973 when the lower appellate Court set aside the judgment and decree of the trial Court and dismissed the plaintiffs' suit.
5. According to the learned counsel for the plaintiffs the dismissal of the previous suit did not operate as res judicata because the said suit was not heard and finally decided by the Court. According to the learned counsel the suit was dismissed as not maintainable because of the change in law brought by Act No. 12 of 1973. I am unable to accept this contention raised on behalf of the plaintiff-respondents. Section 11 Civil P. C. provides that no Court shall try and suit if in a former suit between the same parties the matter has been heard and finally decided by the Court. It could not be successfully argued that the matter was not heard and finally decided in the former suit. The plaintiffs in the earlier suit alleged that they were governed by custom in the matter of alienation but failed as the right to contest the said alienation was taken away by virtue of Act No. 12 of 1973. It was, therefore, on the finding that the parties were governed by custom in the matter of alienation that the suit as such was held to be not maintainable and consequently the same was dismissed. Under these circumstances, the provisions of S. 11 Civil P. C. are fully attracted as in the former suit the matter has been heard and finally decided by the Court as contemplated therein.
6. The suit was also barred on the principles of constructive res judicata as well, in view of the explanation IV to S. 11 which provides that any matter which might and ought to have been made ground of defence or attach in such former suit shall be deemed to have been a matter directly and substantially in issue in such suits. It is not disputed that the plaintiffs could plead in the alternative in the earlier suit that in case it is found that they are not governed by custom, they will be deemed to have been governed by Hindu Law. Admittedly, no such plea was taken in the former suit. It also could not be disputed that if such a plea in the alternative would have been taken in the former suit, the said suit would have continued irrespective of Act No. 12 of 1973 amending the principle Act because under that Act only the alienations made by the persons who were governed by custom in the matter of alienation were taken away as being uncontestable. According to the learned counsel for the plaintiff-respondents. taking these pleas in the alternative was not advisable as it would have created confusion and therefore, if such a plea was not taken then the plaintiff were not debarred to file the present suit by taking the said plea now in the plaint. In support of this contention reference was made to Kameshwar Parshad v. Raj Kumari Rattan Kaur (1892) 19 Ind. App. 234, wherein their Lordships of the Privy Council have drawn a distinction between the ground which might have been taken in the former suit and the grounds ought to have been taken, in the following terms:-
'that it 'might' have been made a ground of attack is clear. That is 'ought' to have been appears to their Lordships to depend upon the particular facts of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word 'ought' would be become important; in this case the matters were the same. It was only an alternative way of seeking to impose a liability upon Ram Bahadur, and it appears to their Lordships that the matter 'ought; to have been made a ground of attack in the former suit, and therefore that it should be deemed to have been a matter directly and substantially in issue in the former suit, and is res judicata. However, the said observations do not advance the plaintiffs' case in any manner. As a matter of fact, it will be a question to be seen in each case as to whether the grounds available to the parties in the alternative might and ought to have been made the grounds of defence or attack in the former suit or not. As regards the present case if this plea that the parties were governed by Hindu Law in the alternative would have been taken the earlier suit could not be dismissed in spite of the amendment in the law. Since no such plea was taken in the earlier suit the present suit is barred on the principles of constructive res judicata in view of Explanation IV to s. 11, Civil P. C.
7. The contention that the earlier suit was not dismissed on merits but because of the Punjab Amending Act No. 12 of 1973 does not advance the plaintiffs' case in any manner. Whether the earlier suit was dismissed on merits or was dismissed as having been held not maintainable, the effect would be the same. As observed earlier, it could not be disputed, that in case the plea in the alternative that the parties were governed by Hindu Law would have been taken, the said suit would not have been dismissed in spite of the amending Act. Thus, the plaintiffs having failed to take that plea it shall be deemed that that was the matter directly and substantially in issue in that suit. Having failed to take that plea in the former suit, the plaintiffs are now debarred to file the present suit on the principles of constructive res judicata. The change in law brought by Punjab Amending Act No. 12 of 1973 did not provide any further right to the plaintiffs to file the suit challenging the said alienation. As a matter of fact, the right vested in the plaintiffs because they claimed that they were governed by custom in the matter of alienations. It was only that right which was taken away subsequently. In other words, it did not provide that the plaintiffs will now be entitled to challenge the said very alienation on the ground that they are now governed by Hindu Law though earlier they claimed that they were governed by custom in the matter of alienation.
8. Thus viewed from any angle the present suit is barred on the principles of res judicata as well as on the principles of constructive res judicata. The approach of the lower appellate Court in this behalf is wholly wrong and illegal and the view taken by the trial Court is held to be correct.
9. The learned counsel for the appellants also contested the other findings of the lower appellate Court but since the plaintiffs' suit is liable to be dismissed on the principles of res judicata, the same need not be gone into. In this view of the matter the appeal succeeds, the judgment and decree of the lower appellate Court are set aside and that of the trial Court dismissing the plaintiffs' suit are restored with no order as to costs.
10. Appeal allowed.