GIRRAJ Vs. RAM PRASAD

JUDGEMENT

(1.) Present Second Appeal has been filed against the judgment and decree dated 20.03.1990 passed by IIIrd Additional Civil Judge, Mathura in Civil Appeal No. 146 of 1980, affirming the judgment and decree dated 25.07.1990 passed by Additional Munsif, Mathura in Original Suit No. 308 of 1978, Ram Prasad and Ors. v. Girraj and Ors.

(2.) Brief background of the case is that the plaintiffs instituted Original Suit No. 308 of 1978 contending therein that they were owner of the property detailed at the foot of the plaint. The said property in question is situated in Khasra No. 188 and in the revenue record in 1258 Fasli, names of Jai Singh, Duli Chand and Smt. Batto have been recorded and the plaintiffs are their nearest surviving relatives, and as such they are owner of the same, and further in the background of litigation of case No. 88 of 1963, wherein decree had been passed declaring ownership of property in question, and thereafter, it was mentioned that illegally possession had been taken over, hence the suit for ejectment and damages. Said suit was contested by filing written statement and the plea taken therein was that the plaintiffs had no concern with the property in dispute, and since the time of their ancestors, the defendants are owner in possession. Further in earlier proceedings in case No. 88 of 1963, since the defendants were not parties, the decree, if any, was nullity, and as such decree of ejectment could not have been passed along with the damages. Before the trial court, on the basis of pleadings, in all 9 issues were framed. From the side of the plaintiffs, documentary evidence was filed and Rameshwar, Ram Rahi and Mishri Lal, Advocate were examined as P.W. 1, P.W.-2 and P.W.-3, respectively. From the side of the defendants also, documentary evidence was filed and Shyam Charan was examined as D.W. 1. The other witnesses examined from the side of the defendants were Natthi Lal, Ram Hari, Gopal Prasad and Bhagwat Swaroop Saxena as D.W.2, D.W.-3 and D.W.-4, respectively. The trial court on over all assessment of evidence on record decreed the suit on 25.07.1990. Aggrieved against the same civil appeal had been filed, and the same was also dismissed. At the said juncture, present second appeal was filed.

(3.) Sri G.N. Verma, Senior Advocate, contended with vehemence that in the present case both the courts below have erred in law in holding that the judgment and decree passed in suit No. 88 of 1963 operates as res judicata, whereas judgment of said suit could not have operated as res judicata as the attachment under Order 38 Rule 5 C.P.C. had been withdrawn, and as such title of the parties could not have been decided and by placing reliance on the judgment and decree in suit No. 88 of 1963, perverse and unsustainable orders have been passed ignoring the fact that appellants were not party in said proceedings, as such the judgment and decree of both the courts below are liable to be set aside.