MOHD AYUB Vs. MOHD SHARIF

JUDGEMENT

(1.) THIS second appeal arises out of a suit for declaration and possession. It is alleged that old plot no. 444 was subsequently changed to new number 761. It was originally the fixed rate tenancy of Bhagwan Singh, Harnam Singh and Mahadeo Singh who transferred it to Ghisiyawan on April 18, 1907. The south- eastern portion of that plot was just appurtenant to the land of the plaintffs and therefore, the heirs of Ghisiyawan sold 8 1/4 biswas of land in the said plot to the plaintiffs on 4-4-1946. The defendants had their house situated towards the west of the land purchased by the plaintiffs and had no concern with the same. After the plaintiffs took the same, the defendants encroached on a portion of the said land and the plaintiffs filed suit no. 82 of 1947 in the court of the Munsif, Hawaii which was decided against them and an appeal against the trial court's decree abated. As regards rest of the portion purchased by the plaintiffs they were in possession, cultivated it, produced vegetables and used it as Sahan. Later, on the defendants had some ill motive and they wanted to usurp this land also and started proceedings under section 145 or. P.C. which re suited in the attachment of the property. The said criminal proceedings ended in favour of the defendants and hence the plaintiffs had to file the suit in question. The defendants jointly contested the suit, denied the plaintiff's allegations and pleaded that the plaintiffs were not in possession within 12 years from the date of the suit and the suit was barred by Articles 142 and 144 of the (old) Limitation Act. It was also contended that the suit was barred by section 11 C. P. C. Certain other pleas were also taken. The trial court framed the neces sary issues and tried the suit. The suit was decreed. An appeal was taken to the lower appellate court but the same also failed. Now, the defendants have come up in the instant second appeal and in support thereof Shri Sankatha Rai, learned counsel for the appellants, has made his submissions. In opposition, Sri K. P. Singh, learned counsel for the plaintiffs respondents, has been heard.

(2.) SRI Sankatha Rai raised four contentions in support of the appeal. Firstly, he contended that the courts below erred in holding that the judgment in the earlier suit No. 82 of 1947 did not operate as res judicata in the instant suit in question. Secondly, he contended that there was an inconsistancy between the body of the judgment of the lower appel late court and the operative part of the said judgment. Thirdly, it was contended that plot no. 761/1 claimed by the plaintiffs-respondents was not demarcated with the help of partali map by the trial court. Lastly, it was argued that it was obligatory for the trial court to have framed an issue under Section 331A of the U. P. Act I of 1951 and should have referred the matter to the revenue court for its decision under the said provision of law. The trial court failed to do so and hence its judg ment and decree stood vitiated. I shall deal with these contentions is seriatim.

(3.) ON the basis of the said authorities, it has been contended that for applying the principle of res judicata, what is relevant is not the identity of the subject-matter but the identity of title under which the subject-matter of the suit is claimed. Referring to the judgment in the former suit No. 82 of 1947 a true copy of which was filed in the instant suit and marked as Ext. A-1, attention was drawn to the following observation appearing in the said judgment: