ISHAR SINGH Vs. SARWAN SINGH

JUDGEMENT

(1.) A very short point whether a finding in a previous suit between the same parties on the issue relating to the relationship of the respondent to the deceased owner of the suit property is or is not res judicata in the suit out of which this appeal arises, is the only question for consideration in this appeal by special leave.

(2.) The original owner of the suit properties which consist of agricultural land measuring about 66 bighas and odd in the village Kotla and a kutcha house in the same village and another extent of 13 bighas and odd of land in neighbouring village, was one Jati who died childless on May 20, 1951, his widow also having pre-deceased him. The respondents Sarwan Singh and three others claimed to be the collaterals of the deceased and his nearest heirs. Soon after the death of Jati the appellant Isher Singh, who put forward a claim based on an oral will by the deceased Jati, managed to obtain possession of the properties. The respondents made applications to the Revenue authorities for mutation in their favour and they secured favourable orders on these petitions ignoring the appellants claim under the oral will which he set up. As the mutation proceedings, however, did not conclusively determine the title of the parties to the properties, Ishar Singh challenged the right of the respondents by filing a suit against them in the Court of Sub Judge Second Class, Rajpura, on January 20, 1954 for a declaration as regards his title and for a permanent injunction restraining the respondents from interfering with his possession. We shall be referring to the terms of the plaint a little later but it is sufficient to point out at this stage that the specific plea made by Isher Singh was that jati had disposed of the property in his favour by an oral will. This case was found against and the suit was dismissed. An appeal preferred by Isher Singh to the District Judge also failed and a second appeal preferred to the High Court is stated to have been dismissed in limine. Isher Singh who was in possession at the commencement of the previous suit, did not surrender it on the final dismissal of his suit which he had brought to assert his title to the property. The respondents accordingly brought the present suit before the same subordinate Judge on May 23, 1956 in which they prayed for possession basing their claim on their title as the nearest collaterals of the deceased Jati.. In this plaint the respondents pleaded that Isher Singh had no title at all to the suit property, the title on the basis of the oral will having been negatived, that their relationship to Jati had been established in the previous suit brought by Isher Singh and that the issue as to this relationship was res judicata between the parties. Isher Singh defended the suit by asserting that the respondents were not the collaterals of Jati and that therefore, they had no title in themselves to dispossess him and that the finding recorded in the previous proceeding as regards the relationship of the respondents was not res judicata between the parties. The learned Subordinate Judge passed a decree in favour of the respondents for possession of the property holding that the plea regarding relationship was not open to the appellant being barred by res judicata. An appeal filed to the learned Additional District Judge, Patiala was dismissed on the same reasoning and, similarly, a second appeal to the High Court. Thereafter the appellant moved this Court and obtained special leave and that is how the appeal is before us. It is the correctness of this decision of the High Court holding that the plea regarding the title of the respondents to the property as the next heirs of Jati was barred by res judicata that is raised for consideration in this appeal.

(3.) The point that is raised in this appeal is really not so much as to the scope of a plea of res judicata and the law bearing upon it, but merely the application of well-settled principles to the facts of the case. The main submission of Mr. Bishan Narain - learned Counsel for the appellant was that the issue as regards the relationship of the respondents to the deceased - Jati as his collaterals was not, "a matter directly and substantially in issue" in the former suit. Obviously, this question has to be decided (a) on the pleadings in the former suit, (b) the issues struck therein, and (c) the decision in the suit. So far as the pleadings themselves are concerned, they did raise a controversy as to whether the respondents were the collaterals of Jati. The plaint filed by Isher Singh on January 20, 1954 is by no means a long one. After reciting in paragraph 2 the death of Jati without leaving any widow or issue, he set out that he had been rendering service to the deceased and the latter being pleased with him, made an oral will in respect of his entire moveable and immoveable properties in his favour and had thus declared him to be his heir. Paragraph 3 set out the proceedings in regard to mutation and pointed out that the oral will was not permitted to be established in those proceedings, with the result that the matter had been decided by the Revenue authorities against his contention. It is paragraph 4 which is very relevant and we shall read it in full;