JODHAN Vs. BOARD OF REVENUE AND ORS.

JUDGEMENT

(1.) THIS writ petition filed by Jodhan, which has been referred to us for decision at the instance of S.N. Singh J., challenges a decision given by the Board of Revenue on 30 -5 -1961 in a second appeal arising out of a suit under Sec. 176 of the Zamindari Abolition and Land Reforms Act, confirming the appellate decision of the Additional Commissioner. Gorakhpur, dated 2 -12 -1960.

(2.) THE plots in suit were originally held by one Ghulaman, who left two sons, Salik (father of the petitioner Jodhan and O. P. 6 Natha) and Lochan (father of O. P. 4 Ramdhari). On Ghulaman's death the property was recorded in the name of Lochan alone; and when Lochan and Salik died a dispute arose between their sons, Ramdhari (son of Lochan) claiming to be the sole tenant, while Jodhan and Natha (sons of Salik) claimed that they were entitled to half share in the plots in question. On 20 -3 -1957 Jodhan and Natha filed this suit for partition under, Sec. 17ft of the Zamindari Abolition and Land Reforms Act, which was decided in their favour by the Assistant Collector First Class on 16 -8 -1960.

(3.) THE contention now advanced by the petitioner Jodhan (which was also taken by him. before the Commissioner and before the Board of Revenue) is that the defence of Ramdhari in the partition suit to the effect that he was the sole sirdar of the disputed plots was barred by the principle of res judicata, in view of the earlier decision Riven against him by the First Additional Munsif of Deoria on 11 -1 -1960, which had become final between the parties. This plea was repelled by the Board of Revenue on the ground that the Civil Court had no jurisdiction to try the subsequent suit for partition of the holding and consequently the Civil Court judgment could not operate as res judicata under Sec. 11 C. P. C. 4. The fundamental question that calls for determination in this case therefore is whether a decision given by a Civil Court in a civil suit can operate as res judicata in a revenue suit subsequently decided by a Revenue Court, in which the same matter is directly and substantially in issue. Sec. 11 C. P. C. is couched in the following terms: