MOHHAMED KHAN Vs. IBRAHIM KHAN

JUDGEMENT

(1.) Leave granted. This appeal has been preferred against the judgment and order dated 31st January, 2012 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Second Appeal No.135/1994 whereby the Second Appeal of the appellant was dismissed by the High Court, by holding that the suit is not barred by the principle of res judicata, which was the main plea of the appellant -defendant in the suit.

(2.) The respondent -plaintiff filed suit for possession stating that the plaintiff was the owner of the suit property by virtue of sale deed dated 24th May, 1972 executed in his favour by the defendant and that the appellant -defendant had forcibly dispossessed the plaintiff in September, 1983. The stand of the appellant -defendant in contesting the suit was that an earlier suit No. 105 A of 76 on the same cause of action was dismissed by the trial court on 21 st February, 1981 against which appeal was dismissed on 16th July, 1985 and the present suit was filed thereafter on 3rd October, 1985 which was barred by res judicata. The trial court vide judgment and decree dated 29th September, 1992 upheld this plea and dismissed the suit. It was held: - "The documents produced on behalf of plaintiff Ex.P -2 copy of statement of Mohammad Khan, Ex. D -1 judgment dated 16 -7 -1985 of appellate court and on perusal of sale deed Ex.P -1 and pleading it is undisputed that on the basis of this sale deed Ex.P -1 the plaintiff has filed suit for declaration of title, possession and permanent injunction against Mohammad Khan with regard to disputed land of survey No.136/137 having total area of 4.139 hects before the Court of Civil Judge Class -I, Basoda which has been dismissed on merits. As such under section 11 of CPC principle resjudicata will be applicable."

(3.) The respondent preferred an appeal on which the appellate court reversed the finding as follows : -