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Ahemad Ibrahim and ors. Vs. Khokhar Issa Abdulkarim and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1980)2GLR514
AppellantAhemad Ibrahim and ors.
RespondentKhokhar Issa Abdulkarim and ors.
Cases ReferredGirdhar v. Dayabhai
Excerpt:
- - 320-d-6 belonged to the father of the plaintiffs as well as deceased abdulkarim whose heirs and legal representatives are the present defendants 1, 2 and 3 i. these facts are well established on the record of the case. 202/72 is clearly barred by res judicata in view of the earlier dismissal of the plaintiff no. the learned trial judge also negatived the defence that the present suit was barred by limitation but it was held by the learned trial judge that the plaintiffs failed to prove that the defendants were the licensees of the suit property and on the issue no. the plaintiffs unsuccessfully carried the matter in appeal before the district court at jamnagar, being c. it may be observed here that before the trial court in the earlier proceeding, the plaintiff's learned advocate.....s.b. majmudar, j.1. the original plaintiff-appellants have filed this second appeal being aggrieved by the decision of both the courts below dismissing their suit as barred by res judicata.2. in order to appreciate the real controversy between the parties centering round the question of res judicata, it is necessary to have a look at certain relevant facts. the plaintiffs are the heirs of one ibrahim hasanali. appellants plaintiffs nos. 1 and 2 are his sons while appellant no. 3 is his daughter. in order to understand the relations between the parties it is profitable to glance through the relevant pedigree. there was one ibrahim hasan, common ancestor of the plaintiffs and the defendants. he had three sons, abdulkarim, abdulla and ahmed and a daughter amna out of whom abdulla, plaintiff.....
Judgment:

S.B. Majmudar, J.

1. The original plaintiff-appellants have filed this second appeal being aggrieved by the decision of both the Courts below dismissing their suit as barred by res judicata.

2. In order to appreciate the real controversy between the parties centering round the question of res judicata, it is necessary to have a look at certain relevant facts. The plaintiffs are the heirs of one Ibrahim Hasanali. Appellants plaintiffs Nos. 1 and 2 are his sons while appellant No. 3 is his daughter. In order to understand the relations between the parties it is profitable to glance through the relevant pedigree. There was one Ibrahim Hasan, common ancestor of the plaintiffs and the defendants. He had three sons, Abdulkarim, Abdulla and Ahmed and a daughter Amna out of whom Abdulla, plaintiff No. 1, Ahmed Plaintiff No. 2 and Amna, Plaintiff No. 3 are alive while Abdulkarim is dead. He died in the life time of his father Ibrahim. Defendant No. 2 Amna Umar is the widow of that Abdulkarim while defendant No. 1 Issa is the son of that Abdulkarim. Defendant No. 3 Jubeda is the daughter of that Abdulkarim. The suit house bearing City Survey No. 320-D-6 belonged to the father of the plaintiffs as well as deceased Abdulkarim whose heirs and legal representatives are the present defendants 1, 2 and 3 i.e. respondents Nos. 1, 2 and 3. It is obvious that respondent No. 1 is the nephew of the plaintiffs while respondent No. 3 is their neice while defendant No. 2 is the widow of plaintiffs' deceased brother Abdulkarim. These facts are well established on the record of the case. The plaintiffs' father Ibrahim was the original owner of the suit house. He died about 7 years before the institution of the present suit. So far as the plaintiffs' elder brother Abdulkarim is concerned, he had expired during the life time of Ibrahim Hasanali The case of the Plaintiffs is that the deceased Ibrahim Hasanali and the plaintiffs had entered into an agreement about the suit house and a registered document was entered into between them and as per the document the respondents were permitted to stay in the suit house as mere licensees while plaintiffs 1 and 2, surviving sons of the original owner of the property, had become sole owners. The said document on the basis of which the plaintiffs traced their title is at Ex. 20 on the record of the case. The plaintiffs' case is that plaintiff No. 2 their married sister who is the only daughter of the original owner Ibrahim was given some other property while plaintiffs Nos. 1 and 2 were made sole owners of the suit property as per document Ex. 20. Their case further is that their elder brother having died in the life time of their father, his heirs had no right, title and interest in the property of Ibrahim and hence they were not given any right in the suit property but they were allowed to stay as the licensees in the suit house by deceased Ibrahim. The aforesaid document Ex. 20 was executed on 3rd July 1947.

3. Now follows the sequence of events in the background of which the plea of res judicata as applicable to the present proceedings has to be appreciated.

4. On 10th September 1970 plaintiff No. 2 filed a suit, being Regular Civil Suit No. 470 of 1970, in the Court of the Civil Judge, J.D. Jamnagar. In the said suit he joined present plaintiff No. 1 as proforma defendant as he was not inclined to be joined as plaintiff. The said suit was filed only against present defendant No. 1, the son of the plaintiffs' deceased brother Abdulkarim. It was alleged in the said suit that defendant No. 1 of that suit, present defendant No. 1, was a mere licensee in the suit premises and his licence was terminated and still he has not vacated the suit premises and hence the aforesaid suit was filed to recover possession of the suit property on the strength of the alleged revocation of licence of present defendant No. 1. The learned trial Judge who tried that suit came to the conclusion that the alleged licence said to have been granted by the plaintiff of that suit in favour of defendant No. 1 was not proved and consequently the learned trial judge dismissed the previous suit on December 15, 1975. A certified copy of the said judgment is at Ex. 60.

5. Now comes the stage when the suit from which this second appeal arises was filed. The original plaintiff of the prior suit in company of original defendant No. 2 of that suit filed the present suit wherein the original plaintiff of the former suit became plaintiff No. 2 and proforma defendant No. 2 of that suit became plaintiff No. 1 and these plaintiffs got the company of their married sister Amna who was joined in the present subsequent suit as plaintiff No. 3. They filed this suit not only against original defendant 1, the son of their deceased brother Abdulkarim who was joined as defendant No. 2 but they also joined his mother as defendant No. 2 and his sister as defendant No. 3. After so arranging the parties, they filed the present suit being C.S. No. 202 of 1972 in the Court of the Civil Judge J.D. Jamnagar for possession of the suit property from the defendants on the ground that the plaintiffs Nos. 1 and 2 were the owners of the suit property and the defendants had no right, title interest in the suit property and were liable to be evicted. The present suit essentially based on title of the plaintiffs to the suit property is filed against the defendants who are alleged to have no right, title or interest therein. The contention of the plaintiffs is that the second suit which is based on title is not barred by res judicata only on account of the previous dismissal of the suit filed by plaintiff No. 2 against only defendant No. 1 when it was essentially based on licensor and licensee relationship. The defence of the respondents-defendants in the present proceedings was that the subsequent suit No. 202/72 is clearly barred by res judicata in view of the earlier dismissal of the plaintiff No. 2's civil suit No. 470/70. They also contended that the suit was barred by limitation and that they had become owners by adverse possession and that the plaintiffs had no tide to the suit property. On these pleadings the learned trial Judge framed issues at Ex. 11. The issues read as under:

(1) Whether plaintiffs prove that they are the owners of the suit premises?

(2) Whether the plaintiffs prove that defendants are licensees of the suit premises?

(3) Whether the defendants prove that they had become owners of the suit premises by adverse possession?

(4) Whether the suit as barred by res judicata?

(5) Whether the suit is barred by limitation?

(6) Whether the plaintiffs are entitled to the possession of the suit premises?

(7) What order and decree?

The learned trial Judge held the title of the plaintiffs proved and he negatived the contention of the defendants that they had become owners by adverse possession. The learned trial Judge also negatived the defence that the present suit was barred by limitation but it was held by the learned trial Judge that the plaintiffs failed to prove that the defendants were the licensees of the suit property and on the issue No. 4 about res judicata, the finding of the learned trial Judge was that the present suit was barred by res judicata, in view of the decision of the former suit No. 470/70. The net result was that the trial Court dismissed the plaintiffs' suit. The plaintiffs unsuccessfully carried the matter in appeal before the District Court at Jamnagar, being C.A. No. 72/73 which came to be dismissed by the learned appellate Judge merely on the ground of res judicata concurring with the finding of the learned trial Judge on issue No. 4. Even though in para 8 incidentally the learned appellate Judge made certain observations in favour of the plaintiffs, as these were incidental observations made in passing, no capital can be made of them by the present plaintiffs to sustain any decree in their favour on merits. The learned appellate Judge has, however, dismissed the appeal substantially on the view that the present proceedings were barred by res judicata. As stated above, the dissatisfied plaintiffs have come to this Court in second appeal seeking reversal of the decrees of dismissal of their suit as passed by both the Courts below.

6. Mr. P.V. Hathi, the learned Advocate appearing for the plaintiffs vehemently contended that the appellate Court had committed a grave error of law in holding that the present suit is barred by res judicata. Mr. Hathi contended that the cause of action of the present suit was completely different from the one which was agitated upon three years back; that the parties were also different and no final finding whatever was reached in the previous suit regarding the title of the respective parties to the suit property which can ever be pressed in aid as amounting to res judicata in the present suit.

7. Mr. B.D. Shukla, learned advocate appearing for the respondents, supported the judgment and decree of the lower appellate Court and submitted that in the earlier suit all the necessary parties were on the record. Plaintiff No. 3 was not required to be joined as plaintiff in the earlier suit as she had no right, title and interest in the suit property. Similarly, defendant No. 2 who ought to have been joined in the earlier suit was not joined but as the present plaintiffs Nos. 1 and 2 who are interested in the suit property were already on record in the previous suit, the question of res judicata will still remain to be considered in the present proceedings. It was further submitted by Mr. Shukla that in the prior suit, the question of right of the defendants to remain in possession as licensee had arisen for consideration, and in the present suit also there is an issue whether the defendants are the licensees of the suit premises. Therefore, it was submitted by Mr. Shukla for the respondents that the findings arrived at in the prior proceedings between the relevant parties would operate as res judicata in the present proceedings.

8. In order to appreciate the controversy posed by the appellants for the consideration of this Court, it is necessary to recall the nature of the proceedings which were initiated previously by the present plaintiff No. 2 against present defendant No. 1 wherein the present plaintiff No. 1 was a proforma defendant. The judgment of the learned trial Judge in the previous suit No. 470/70 is on the record of this case at Ex. 60. A mere look at the said judgment shows that the previous suit was based on the ground that the original defendant No. 1 was a licensee of the suit premises and even though his licence was terminated he did not hand over possession; that the cause of action had accrued when the plaintiff of that suit had terminated licence of defendant No. 1 of that suit. Thus it was a suit based purely on the alleged licensor and licensee relationship between the present plaintiff No. 2 on the one hand and defendant No. 1 on the other; that defendant No. 1 in the aforesaid suit had claimed adverse possession and had put forward bar of limitation. The learned trial Judge had, in that suit, not framed those issues which according to him were irrelevant. The issues which he had framed in . the previous proceedings read as under:

(1) Whether the plaintiff proves that the defendant is the licensee of his and defendant No. 2 in the suit premises?

(2) Whether the plaintiff proves the determination of the lease.

(3) To what means profits, if any, the plaintiff and defendant No. 2 are entitled from the date of the suit?

(4) What order and decree?

The aforesaid issues in the previous suit make it clear that the learned trial Judge on the previous occasion had examined only one question as to whether the plaintiff in that suit could prove that the contesting defendant in that suit was a licensee and whether his licence was terminated. The learned trial Judge came to the conclusion that the plaintiff in that case was not able to establish his theory of alleged licence in favour of defendant No. 1 and on that finding he dismissed the suit. It may be observed here that before the trial Court in the earlier proceeding, the plaintiff's learned Advocate had contended that the title deed which was produced in the case clearly established the plaintiff's ownership of suit premises and on that basis a submission was made that relief of possession could be granted to him even on the strength of his title against defendant No. 1. The learned trial Judge in terms negatived that contention and held that no such relief can be granted to the plaintiff in the suit as that suit was not based on title. The learned trial Judge in terms held that he was not called upon to decide this question and it was not necessary for him to decide that question in the light of the controversy which had arisen before him, and in the context of the limited controversy based on alleged licensee licensor relationship as pleaded by the plaintiff in that suit. Accordingly the learned trial Judge dismissed the prior suit. A resume of the aforesaid salient features reflected by the judgment in the previous proceedings clearly shows that the earlier suit was based purely on licensor and licensee relationship between the present plaintiff No. 2 and the present defendant No. 1. It was not a suit to which the present plaintiff No. 3 or present defendant Nos. 2 and 3 were parties. The matter substantially in issue between the parties in the previous suit is clearly different from the matter in issue in the present suit. It is also equally clear that the prior suit and the subsequent suit are also not between the same parties. There are additional parties in the present proceedings. The learned appellate Judge has rightly taken the view that so far as plaintiff No. 3 is concerned, she has been joined unnecessarily in the present proceedings as she had no right or interest in the present proceedings as she bad no right title or interest in the suit property on the averments in the plaint and hence nonjoinder of plaintiff No. 3 in the previous suit will not have any material bearing on the question of res judicata. But so far as present defendants Nos 2 and 3 are concerned, it must be stated that they are also heirs of Abdulkarim and arc residing in the suit house. Defendant No. 3 is the married sister and may be staying away. Defendant No. 2 is staying in the suit property. In fact the learned appellate Judge has himself held that defendant No. 2 was necessary party to the previous proceedings. Now the plaintiffs have joined all the necessary parties in the present suit. Therefore, it must be held that the previous suit was not between the same parties and was also not based on the same cause of action and the matters directly and substantially in issue in the previous suit were not the same as they are in the present suit. Thus on all these grounds the applicability of Section 11 of the C.P.C. to the present proceedings is ruled out. Before Section 11 of the C.P.C. can be pressed in service, it has got to be established by the contesting defendants that the matters directly and substantially in issue in the present proceedings were directly and substantially in issue in the former suit, and that they have been finally adjudicated upon in the previous proceedings. They have also got to further establish that the former suit was between the same parties or between the parties under whom the present parties have been claiming. These two important requirements of Section 11 are totally missing in the present suit. As seen above, the former suit and the present suit have different parties. Even the non-joinder of present defendants Nos. 2 and 3 in the previous suit makes a world of difference. At least defendant No. 2 was a necessary party to the previous suit and she is not claiming through defendant No. 1 who was a party to the previous, suit. Hence it must be said that the former suit was not between the same parties. Therefore, the main requirement of Section 11 is missing in the present suit.

9. Even apart from that it, is crystal clear that the matter directly and substantially in issue in the present suit was not directly and substantially in issue in the previous suit. In the former suit the question was whether defendant No. 1 was a licensee. In the earlier suit that question was decided against the plaintiff and hence that suit failed. In that suit the title of the present plaintiffs to the suit property was not in issue and the learned trial Judge refused to go into that question it being de hors the scope of that suit. In fact, the cause of action in the earlier suit was entirely different from the cause of action in the present suit. The cause of action was alleged termination of licence of defendant No. 1 in the previous suit while in the present suit the cause of action was right of the plaintiffs to recover possession on the strength of their title from defendant No. 1 to 3 who are alleged to have no title to the suit house. The matter directly and substantially in issue in the previous suit was whether the present defendant No. 1 was a licensee of present plaintiff No. 2 while the matter directly and substantially in issue in the present suit is whether the plaintiffs are the owner of the suit property and whether the defendants had become owners of the suit house by adverse possession and whether the present suit was barred on that ground. In fact, these are the main issues which have been framed by the learned trial Judge in the present proceedings, being issues Nos. 1, 3 and 5 respectively which I have extracted in the earlier part of this judgment. Thus, it must be held that even the second requirement of Section 11, viz. that the matter directly and substantially in issue in the present suit was directly and substantially in issue in the former suit is missing. In addition to the aforesaid infirmities in the defendants attempt to apply the principles of res judicata to the present proceedings, there is a further impediment in their way. Even assuming that the question of title to the suit house was incidentally in issue, no such issue was ever raised and heard and finally decided by the trial Court in the earlier suit. As I have already stated above, the learned trial Judge in that suit refused to go into the question of title to the suit property inspite of the defence of adverse possession on the ground that these issues were extraneous to the scope of those proceedings which were based on licensor and licensee relationship between the parties and thus it cannot be said that the question of plaintiff's title to the suit property was heard and finally decided in the previous suit. Thus all the basic requirements of Section 11 are totally absent in the present case. The learned appellate Judge came to the conclusion that the present suit is barred by res judicata on the ground that the plaintiff No. 3 was a susperflouous party and is not a necessary party to the present suit. The contending defendant No. 1 was a party. He further took the view that even though defendant No. 2 was a necessary party to the previous suit, as she was not joined in the previous suit, the previous suit was defective to that extent. But if the previous suit was defective, it was liable to fail on that ground and that could certainly not affect the plaintiff's right to file a substantial suit on title if it was otherwise permissible to do so. The non-joinder of necessary parties on previous occasion would certainly affect the plea of res judicata in the present suit inasmuch as one of the basic requirements of the applicability of that plea, viz. the identity of parties in both the proceedings will be lacking. The learned appellate Judge has also stated that the suit is barred by the principles of constructive res judicata. Explanation IV to Section 11 of the C.P. Code is as under:

Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such a suit.

Before Explanation IV to Section 11 can be pressed in service, its main requirement have got to be satisfied. Now in the present case it has been found that all the three basic requirements of applicability of Section 11 are missing. The parties are not the same. The main subject matter is not the same, the causes of action in both the suit are different, and the issue of plaintiff's title has not been heard and finally decided in the previous suit. But even apart from these facts, before Explanation IV can be pressed in service, it must be held that the parties were required to put forward any matter which might or ought to have been made ground of attack or defence. It is not enough for the applicability of Explanation IV that any matter or matters could have been made a ground of attack or defence in the previous suit. The further requirement is that it ought to have been so made a ground In the present case, it is found that even in the earlier proceedings the contesting defendant No. 1 tried to put forward his plea of adverse possession. The learned trial Judge in that proceeding refused to entertain such a plea on the ground that it was totally foreign to the limited scope of the suit. Thus, defendant No. 1 was not bound to plead adverse possession in the previous suit for defeating the plaintiff's case which was based on alleged relationship of licensee and licensor. Once he proved that he was not a licensee of the plaintiff, the matter ended and the suit of the plaintiff would fail as in fact it had failed. The defendant was not required to put forward and prove his plea of adverse possession to get the suit dismissed. Consequently it must be said that Explanation IV would not be attracted on the facts of the present case as has been wrongly assumed by the learned appellate Judge. It is impossible to contend that plea of adverse possession ought to have been made a ground of defence by defendant No. 1 in the previous suit when in fact his attempt to raise such a plea in that suit was expressly rules out by the Court in that suit.

10. The aforesaid discussion leaves no room for doubt that the present suit cannot be said to be barred by res judicata on account of the previous dismissal of plaintiff No. 2's suit against defendant No. 1 when on a previous occasion it was found by the learned trial Judge that the plaintiffs failed to establish their case of alleged licence in favour of defendant No. 1. It is now well settled that in such a case a subsequent suit based on title is not barred by res judicata. In the case of Zamtrin of Calicut v. Narayanan Mussad I.L.R. 22 Mad. 323, a Division Bench of the Madras High Court while considering the question of res judicata was confronted with a situation where in a previous suit in which the plaintiff has been a party, it had been attempted to assert plaintiff's title to a piece of land occupied by the defendants by proving that they held the same by virtue of an alleged specific lease. The Court had held that no such lease had been executed and dismissed the suit. The plaintiff filed subsequent suit on title alleging that the land belong to him and sued to recover it on the strength of his title. He also set up the alleged lease once more. It was observed by the Division Bench in that case that though the question of the validity of the lease was res judicata, the plaintiff was at liberty to sue also on the strength of his title, independently of the lease, and he was not estopped from so suing by the fact that the former suit had been based on the lease alone. The Privy Council in Surendra Nath Koran Deo v. Kumar Kamakya Naran Singh 32 Bom. L.R. 515 had also an occasion to consider the question as to when an issue can be said to be finally decided in a previous suit. In Surendra Nath's case the facts were that on a previous occasion, the question whether the defendant's tenure was a Jagir or not was not finally decided. In a subsequent suit the same question was raised again. It was held that the said issue could not be res judicata in the subsequent suit and such a question can be examined afresh. The Privy Council observed in the aforesaid decision that in the first suit for arrears of rent, the Court of first appeal referred in its judgment to the suit land as the defendant's Jagir, but it also stated that the only point at issue was as to the rate of rent, and on second appeal the High Court dealt with the case in the same way. The Privy Council held that in these circumstances, even assuming that the question of the defendant's tenure arose in the case, as the final judgment of the High Court in second appeal did not deal with the question whether the defendant's tenure was a Jagir, there was no final decision within the meaning of Section 11, Civil Procedure Code, 1908, of the issue as to whether the defendant's estate was a Jagir and that question could be gone into in a subsequent suit between the parties. A Full Bench of the Bombay High Court had also an occasion to consider similar question in the case of Girdhar Manordas v. Dayabhai Kalabhai I.L.R. 8 Bombay 174. In that case the plaintiffs in 1869 sued the defendant's to eject the latter from a certain piece of land alleging that the defendants held it under certain leases dated July 1864. In these proceedings the genuineness of the alleged a lease was put in issue and was decided by the Subordinate Judge in favour of the plaintiffs, who accordingly obtained a decree. The said decree was set aside in appeal by the learned District Judge on the ground that the alleged leases were not proved. Thereafter in 1874 the plaintiffs brought a subsequent suit to eject the defendants. In that suit the plaintiffs sued simply as owners and alleged that the defendants were in occupation as tenants paying rent to the plaintiffs and that the defendants had refused to give up possession. The question referred to the Full Bench was whether under the circumstances of that case, that suit must be considered to be barred by res judicata. It was observed that the suit was in each of the two cases against the defendants as tenants of the plaintiffs, but that does not imply that the former suit was on a cause of action identical with the one that was relied on in the later suit. The things were not necessarily identical because they were of the same description and the term tenancy might be applied to great many different relations between the occupier and the owners of property, agreeing perhaps only in the single circumstance of a holding by the one of property of the other. It was held that, what was to be seen was not whether the tenancy in both the suits was sued on, but whether the particular contract or relation put forward in the first case was the same specific contract sued on in the second. If it was, the cause of action was so far identical; if not, it was not identical. A cause of action reduced to the concrete form which it must assume in a contest between individuals implied a specific right and a specific infringement of the right. A judgment that one such specific right had not been made out, was not a trial and determination of a cause of action resting on another specific right, and the former adjudication was not res judicata for the purpose of the new suit. Thus, according to the majority view of the Full Bench, Justice Melvin dissenting, it was held in the aforesaid decision by the Bombay High Court that the subsequent suit based on title was not barred by res judicata. Though the decision of the Full Bench is very old, rendered in 1884, the said judgment has been referred to with approval by the Supreme Court in the recent decision in the case of Koshal Pal v. Mohan Lal : [1976]2SCR827 of its judgment the Supreme Court has referred to the ratio of the Full Bench decision of the Bombay High Court reported in I.L.R 8 Bom. 174. The Supreme Court has observed that the ratio of that decision was not applicable to the facts of the case before the Supreme Court. In fact, the ratio of the said judgment has been approved by the Supreme Court in para 37 when it was observed as under:

For example, in Girdhar Manordas v. Dayabhai Kalabhai (1884) I.L.R. 8 Bom. 174 (FB) which is a Full Bench decision it was held by the majority in that case that the plaintiffs were not barred by the judgment in the former suit. A perusal of the facts of that suit will clearly show that in the first suit the plaintiff lost the suit for eviction of the defendants on the ground that the alleged leases were not proved. The plaintiffs gave up the battle on that plea and later on brought another suit to evict the defendants on the basis of title. The decision is clearly distinguishable from the peculiar facts of the litigation with which we are concerned in the present appeal.

Thus it is clear that the ratio of the judgment of the Full Bench of the Bombay High Court has been completely approved by the Supreme Court in so far as it applies to facts which are similar to the facts before the Full Bench of the Bombay High Court. So far as the facts of Koshal Pal's case (supra) are concerned, in the previous suit there was a decision rendered between the contesting parties that the plaintiffs had no title to the suit property and that the suit was barred by limitation and that the defendants had become owners by adverse possession. In the peculiar facts of that case the Supreme Court held that findings operated as res judicata in the subsequent proceedings between the same parties. But in the present case, as already discussed above, on the previous occasion the learned trial Judge in the former suit did not go into the question of the plaintiff's title to the property nor into the defendants alleged adverse possession. Consequently there was no final determination on that issue and that plea can never become res judicata. On the contrary, as observed by the Supreme Court, the decision of the Full Bench of the High Court was based on facts which showed that on such facts subsequent suit would not be barred by res judicata. The facts before the Full Bench of the Bombay High Court in Girdhar Manohardas' case (supra) are practically parallel to the facts of the present case. In the present case, similar situation which was found in Girdhar v. Dayabhai 's case exists. One of the contesting plaintiffs had lost on previous occasion on his plea of alleged licence given to defendant No. 1. Now he wants to revert to his title, and on that basis he wants to evict the defendants who are occupying the said premises. The defendants have contested the present proceedings. These issues never arose for decision on the previous occasion, never were they heard and finally decided by the Court trying the earlier suit. In that view of the matter, it can never be said that the present suit is barred by res judicata as wrongly assumed by the Courts below. It must be held that the ratio of the Full Bench judgment of the Bombay High Court in Girdhar's case squarely applies to the facts of the present case and hence it must be held that the present suit is not barred by res judicata.

11. Once this conclusion is reached it is obvious that the decree passed by the learned appellate Judge dismissing the appeal will have to be set aside. Mr. Hathi appearing on behalf of the appellants contended that in para 8 of its judgment, the appellate Court has also decided the merits of controversy between the parties and hence the Court can straightway pass a decree in favour of the plaintiffs. I am not in a position to accept this submission of Mr. Hathi. Though in para 8 of the appellate judgment, observations are made regarding the merits of the controversy between the parties, it must be held that the appellate Court has not come to grips with this aspect and the appellate Court has in terms held that it did not want to go into any detailed discussion on the question. Thus it has made only cursory observation on merits of the case which are clearly passing observations. The appellate Court has proceeded mainly and substantially on the question of res judicata. Once the finding reached by the appellate Court on the question of res judicata is reversed the only proper order that can be passed is that the decision given by the learned District Judge, Jamnagar, in Civil Appeal No. 72 of 1973 will have to be set aside and the appeal will have to be remanded to the District Court, Jamnagar, with a direction that the said appeal will be restored in its original number to the file of the District Court and shall be disposed of on merits on the remaining questions which survive for determination between the parties and in accordance with law.

12. The result is that this second appeal is allowed.

13. The judgment and decree passed by the learned appellate Judge dismissing Civil Appeal No. 72 of 1973 are set aside and the said appeal is remanded to the District Court, Jamnagar for rehearing and a fresh decision on merits on the remaining questions in controversy that may survive for decision.

The appeal is accordingly allowed. In view of the facts and circumstances of the case and as the parties are near relatives, the proper order as to casts will be that there will be no order as to costs in the second appeal.


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