(1.) This appeal is directed against the judgment and decree of the Additional Civil Judge, Bulandshahr dated Feb. 17, 1975.
(2.) The suit giving rise to this appeal was instituted in respect of plot No. 92/7 containing area of 1 Bishwa 15 bishwansi. The allegations of the plaint in so far as relevant are that the land comprised in the said plot vested into Gaon Sabha impleaded as defendant No. 10 filed a resolution passed on Jan. 18, 1965. The land was allotted to the plaintiff. The plaintiff thus claims to be entitled to possession over this land. It is also pointed that he instituted an earlier suit No. 467 of 1966 in respect of this same land against Banshi defendant No. 9 (since deceased). The suit was decreed by the trial court but in civil appeal No. 103 of 1968 filed by Banshi, the decree passed by the trial court was reversed. According to the plaintiffs the land involved in controversy therein was plot No. 97/7 but this was not admitted by Banshi therein which was wrongful and hence the decree passed by the appellate court in that earlier suit is vitiated. The relief sought by the plaintiff is declaration that plot No. 92/7 belongs to him and that the decree dated Feb. 19, 1969 in C.A. No. 103 of 1968 passed by the Civil Judge, Bulandshahr is liable to be cancelled. The possession has also been claimed by the plaintiff over the said plot. The suit was resisted by and on behalf of the defendant No. 9 contending that the decree passed in C.A. 103 of 1968 dated Feb. 19, 1969 operates as res judicata and the plaintiff cannot claim to have right, title or interest in the said land on the basis of allotment dated 18.1.1965 from the Gaon Sabha.
(3.) The trial court dismissed the suit on Aug. 14, 1973 being of the view that the earlier decree operated as res judicata. The plaintiff preferred C.A. No. 363 of 1973 which has been allowed in part by the Additional Civil Judge on 17.2.1975. It was observed that the earlier decree does' not operate as res judicata because there has subsequently been survey got made by the court Amin and hence there is change in the place relating to the suit. The plaintiff has been held to have title and the right to possession of the land comprised in plot No. 92/7. In the result, the decree passed by the lower appellate court in favour of the plaintiff is for possession though the relief relating to cancellation of the decree has been rejected on the ground that there is no fraud or anything of any kind showing to exist as that passing of the earlier decree is concerned. Aggrieved the legal representatives of the defendant No. 9 have preferred this appeal. The other defendants No. 1 to 8 were impleaded only proforma in this case.