RAM CHARAN Vs. SMT. BASANTI DEVI AND OTHERS

JUDGEMENT

(1.) THIS is a Plaintiff's second appeal from the decision of the district Judge Varanasi reversing a decree of the Sub -Divisional Officer Chakia in his favour and dismissing his suit for a declaration of his title as the occupancy tenant of certain plots. The Appellant Ram Charan filed this suit against the six Defendants Basanti Devi and her husband, Harbati Devi and her husband and Pvari Devi and her husband. The suit was contested by the women as well as their husbands. Basanti Devi alleged that she was the fixed rate tenant of the plots in suit and that the Plaintiff was not the occupancy tenant. It was also pleaded by all the six Defendants that the Plaintiff's suit was barred by a decision in a previous suit in which it was held that he was not the occupancy tenant of these plots. The trial court held that the suit was not barred by res judicata and found that the Plaintiff had established his claim to be declared the occupancy tenant of the plots. Accordingly it issued a declaration in the Plaintiff's favour. On appeal the learned Judge disagreed with the view of the trial court on the question of res -judicata and held that the Plaintiff's suit was barred by a previous decision. Accordingly he dismissed the suit and the Plaintiff has come to this Court in second appeal.

(2.) THE only point urged before me is that the learned District judge erred in holding that the suit was barred by res judicata. It appears that two suits were fought out before the present one. The first was brought by the three husbands as muqarraridars and by the present Defendant Basanti Devi against the present Plaintiff Ram Charan claiming arrears of rent. It was held that Ram Charan was the occupancy tenant of the plots. Subsequently, Ram Charan, himself brought a suit for declaration that he was the occupancy tenant of these plots. The suit was filed against the muqarraridars alone and Basanti Devi was not a party to that suit. Why Ram Charan filed a second suit after it had been declared in the earlier suit that he was an occupancy tenant has never been explained. His counsel stated in reply to a question from the that the suit was unnecessary and ill advised. There is no doubt that in filing (the second suit) Appellant Ram Charan created all the trouble for himself because the suit was dismissed. Learned counsel for the Appellant argued that the second suit being unnecessary and superfluous should be ignored and the court should only take into account the result of the earlier suit. I cannot agree. The principle of res judicata will be applied if it is pleaded or brought into the notice of the court. If it is not pleaded and the Court proceeds to a decision the decree is not illegal nor a nullity -Code of Civil Procedure by Mulla 12th edition page 94. "The plea of res judicata is not one which affects the jurisdiction of the Court. It is only a plea in bar which may be waived by a party. Therefore, it a party does not raise the plea of res judicata the matter will be put in issue and may be decided against the party." Under American Law the doctrine of res judicata is regarded as a branch of the law of estoppel and a plea of res judicata is grounded on estoppel -American Jurisprudence , Vol. 30A page 376 If it is not pleaded the court is not bound to notice it but is not permitted to consider or take notice of it -ibid p. 379. If a person after having obtained a decision in his favour is foolish enough to file a second suit against the same Defendants or some of them and they are shrewd enough to keep silent about the earlier decision and the court decides the dispute on merits, the second decision will be binding on the parties. Applying this principle to the present case, the Plaintiff was ill advised to reagitate the same matter in a second suit which was decided against him The Defendants in this suit have pleaded that the present suit is barred. In my opinion the decision in the second suit will operate as res judicata in this suit.

(3.) THE appeal is dismissed.