PRABHU DAYAL Vs. INDER DEV

JUDGEMENT

(1.) By way of second appeal, the appellant-Prabhu Dayal has challenged the impugned judgment dated 3 rd October, 2011 passed by the Senior Civil Judge cum RC (Central), Delhi in RCA No.8/2010 whereby the appeal filed by appellant and his two brothers against the judgment dated 15 th December, 2001 passed by the Civil Judge, has been dismissed.

(2.) Factual background of the case is as under:- Appellant herein along with his two brothers/plaintiffs had filed a suit against the respondent herein i.e. defendant before the trial court praying for a decree of declaration to the effect that they are owners in possession in respect of one half of portion of property No.24 (MCD number), new number A-13 and A-21, Sanwal Nagar, New Delhi, as shown red in the site plan attached with the plaint. Their case before the Ld. Civil Judge, Delhi was that their father had become the owner of the half share in the aforesaid property by virtue of agreement dated 9 th July, 1980. The said suit was dismissed by the learned Civil Judge vide judgment dated 15.12.2001 on the ground that the issue involved in the said suit had already been decided on 28.02.1998 in the earlier suit being suit no.379/1989 between the same parties and the said decision has become final and conclusive and Section 11 of the CPC bars trial of any suits in which the issue directly or substantially in issue in the former suit between the same parties has been finally heard and decided by such court. It was held that in view of the judgment in the earlier suit referred to above, the court cannot try the present case on the basis of principle of res judicata and accordingly, dismissed the suit.

(3.) Aggrieved with the said judgment/decree, plaintiffs i.e. appellant and his two brothers preferred an appeal before the learned Senior Civil Judge cum RC (Central) Delhi which was also dismissed on 21 st December, 2009 on the ground of limitation. Against the said order, a CM(M) 152/2010 was preferred before this court wherein delay was condoned and the matter was remanded to the First Appellate Court for reconsideration of appeal. The said appeal has also been dismissed vide judgment dated 3 rd October, 2011. Aggrieved with the judgment/decree dated 3 rd October, 2011, present appeal is filed.