SAMATIA Vs. KRISHNA CHAND

JUDGEMENT

(1.) By this second appeal, the appellant has challenged the legality & propriety of the judgment and decree of dismissal of appeal dated 6-9-1993 passed by the Additional District Judge, Manendragarh in Civil Appeal No. 7A/90, affirming the judgment and decree of dismissal of suit dated 3-5-90 passed by the Civil Judge Class-II, Manendragarh in Civil Suit No. 16A/86 whereby suit filed on behalf of the appellants for declaration of title, possession and permanent injunction was dismissed. The present appeal has been admitted for consideration on the following substantial question of taw:-

(2.) As per pleadings of the parties, original plaintiff Ramcharan, father present appellant No. 1 Samatia and appellant No. 2 Sugreev was owner of the suit property bearing khasra No. 145 area 0.32 acre situated at Manendragarh, Tahsil Manendragarh. Out of the aforesaid area, 0.03 acre land was sold by them to Baijnath Soni and they were in possession of rest land i.e. 0.29 acre. On 31-7-80, respondents No. 1 and 2 have forcefully entered into the land of the appellants and started digging for construction of the house. The plaintiffs opposed the same but they were not succeeded. Finally application under Section 250 of the C.G. Land Revenue Code was filed before the revenue authority, then on 6-8-80, the plaintiffs came to know that the land 0.03 acre is mutated in the names of respondents No. 1 and 2. The plaintiffs have never sold the property to respondents No. 1 and 2. On the aforesaid basis, suit for declaration of title, possession and permanent injunction was filed on 7-8-90. After filing written statements on behalf of the respondents No. 1 to 3, the plaintiffs have amended their plaint and pleaded that plaintiff No. 2 i.e. present appellant No. 2 Sugreev was minor in the year 1960, therefore, he was not competent to file civil suit and decision in Civil Suit No. 11-A/1960 is not binding upon him, even otherwise at the time of attaining majority of appellant No. 2, the land encroached by respondents No. 1 and 2 was fallen vacant and respondent No. 3 has taken the construction material from the alleged construction and the same was within exclusive possession of the appellants till 31-7-1980.

(3.) First civil suit was between appellant No. 2 and respondents, therefore, second civil suit is not barred under the principle of res judicata, the suit was within limitation. By filing specific written statement, respondents No. 1 to 3 have denied the claim of the appellants and have specifically pleaded that the land in possession of the respondents was never owned and possessed by the plaintiffs. Respondents No. 1 and 2 have derived the title on the basis of sale deed executed by respondent No. 3 Smt. Sona Bai. Civil Suit No. 11-A/1960 was tried and decided between plaintiffs of the present case, husband of respondent No. 3 and Amritlal. Finally suit was dismissed. Same was challenged before the Additional District Judge, Ambikapur. Same was also dismissed. In previous suit No. 11-A/1960, present appellant No. 2 Sugreev and deceased plaintiff Ramcharan were parties and they have filed civil suit for recovery of possession of the same land on the basis of title. On the aforesaid basis, the respondents have pleaded that the present suit is barred under Section 11 of the Code of Civil Procedure, 1908 (for short 'CPC') and decision of first civil suit operates as res judicata in the present suit.