SH RAM SUNDER BHATIA Vs. SHARBATI DEVI

JUDGEMENT

(1.) This is a second appeal.

(2.) Factual matrix reads as follows:

(3.) The counsel for the plaintiff/appellant has submitted that the approach of the trial court is erroneous. The first appellate court reversing the finding of the trial judge holding that the principle of res judicata is not applicable is not a correct appreciation on the question of law. Attention has been drawn to para no.3 of the written statement. It is submitted that it is undisputed that the defendant Sharbati Devi had purchased this property from Indira Devi who had in turn purchased it from Laxmi Devi who had purchased it from Raghbar Dayal. The finding of the trial court that the present defendant was in fact a successor in interest of Raghbar Dayal was passed on the correct appreciation of facts. The earlier suit i.e. suit no.474/1956 was instituted by the present plaintiff against Bal Kishan and Raghbar Dayal; the present suit had been instituted by the plaintiff against Chameli Devi who had derived her title from Raghbar Dayal. In the first suit decree for possession had been sought against both the defendants jointly and the judgment Ex.PW-8/1 has decreed the suit of the plaintiff against both the said defendants; defendant no.2 did not qualify as a proforma defendant. This submission of the appellant is in fact borne out from the record. Counsel for the appellant has also placed reliance upon a judgment reported in 2007 8 SCC 329 Saroja vs. Chinnusamy (dead) by LRs & Anr. to support his submission that an ex-parte decree would also in the facts and circumstances of a particular case operate as resjudicata where the conditions as contained in Section 11 of the Code are fulfilled. It is submitted that all the aforenoted ingredients stand fulfilled and since the issue in the earlier suit i.e. in suit no.474/1956 and the present suit was the same, the parties being the same, the first suit although ex-parte yet having been decided by a court of competent jurisdiction in view of the aforenoted judgment the principle of resjudicata squarely applied to the second suit and as such the reversal of this finding was clearly erroneous, contrary and in conflict with the principles enshrined in Section 11 of the Code.