BITOLA KUER Vs. SRI RAM CHARAN

JUDGEMENT

(1.) THE plaintiff who has lost from both the courts below has now filed this second appeal.

(2.) THE suit was for possession over the house in dispute. It is not necessary to burden this judgment by repeating the averments made in the pleadings of the parties. THE two courts below have found as a fact that the house in dispute, which is situated in village Hardaspur in the district of Budaun belonged to one Malkhan Singh. He had a son named Surat Singh. Surat Singh married three wives-one after the other. His first wife was Jamuna Kuer from whom he had a daughter named Larh Kuer alias Lalsukh. Plaintiff Bitola Kuer is the daughter of Larh Kuer. THE second wife of Surat Singh was Deva Kuer. He had no issue from the second wife. THE third wife of Surat Singh was Ram Piari. Ram Piari was also issueless. When Surat Singh died, only Deva Kuer and Ram Piari were alive and they entered in possession of his extensive property as the widows of the last male owner. Relations between Deva Kuer and Ram Piari were not cordial after the death of Surat Singh. Deva Kuer and Ram Piari alienated some of the properties which they held as widows' estate. Deva Kuer died first. THE death of Ram Piari took place on August 26, 1947. Larh Kuer and Bitola Kuer, the present plaintiff-appellants, instituted suit No. 5 of 1949 for setting aside the said alienation and other kindred relief. THE said suit was partly decreed. It was dismissed in respect of certain other reliefs. THEse are concurrent findings of fact which cannot be challenged in this second appeal. THE trial court framed a number of issues. THE suit which was instituted on April 3, 1967 was dismissed on the finding that the plaintiff Smt. Bitola Kuer has not been able to prove her possession over the said property within 12 years of the suit. THE trial court in its judgment referred to original suit No 5 of 1949 filed by Larh Kuer and Bitola Kuer as plaintiffs and it held that since that suit was dismissed in so far as related to possession over the house in dispute, it went a long way to prove that Bitola Kuer or her mother Smt. Larh Kuer were not in possession of the said house. THE trial court was also of the view that as the plaintiff had failed to prove possession within 12 years of the suit, it should necessarily be inferred that the defendant was in adverse possession of the house in suit for more than 12 years. THE trial court held that the plaintiff' s title to the property in dispute was extinguished by the adverse possession of the defendant.

(3.) THE appellant has assailed the finding of the first court of appeal on the question of res judicata and also on the question of limitation. It may be stated at the very outset that Mani was not a party to suit No. 5 of 1949. In any view of the matter he or his legal representatives could not rely on S. 11 of the Code of Civil Procedure to non-suit the plaintiff. In order to attract the doctrine of res judicata, the following conditions must exist :- (1) That the litigating parties in the earlier-suit and the subsequent suit are the same. (2) That the subject-matter of the earlier suit and the later suit must be identical. (3) THE matter must have been finally decided between the parties in the earlier suit. (4) THE earlier suit must have been decided by a court of competent jurisdiction.