PANCHAM Vs. RAM GEN AND OTHERS

JUDGEMENT

(1.) SECOND Appeal has been filed against the impugned judgment and decree dated 04.05.2005/10.03.2005 passed by Special Judge SC/ST Act/Additional District Judge, Mirzapur in Civil Appeal No. 152 of 1982 arising out of Original Suit No. 197 of 1982 wherein judgment and decree dated 28.09.1982 passed by 4th Additional Munsif, Mirzapur has been confirmed.

(2.) BRIEF background of the case is that plaintiff filed Original Suit No. 197 of 1978 before the court of Munsif Mirzapur against Pancham and Dharnee Dhar contending therein that sale deed dated 5th June 1978 is liable to be declared as void. Ground of challenge mentioned therein was that property in question by no stretch of imagination could have been transferred in favour of Pancham by Dharnee Dhar as he had got no concern with the said property in question and said property in question belonged to one Jagannath who was father of the plaintiff, and had acquired property based on will and whose name was mutated in revenue record. Said suit in question was contested by contending therein that sale deed in question has been validly executed and further property in question was joint property and further his name has illegally been left out to be entered in the revenue record and further proceedings under Section 229-B has been initiated and further he has absolute right to execute sale deed. After pleadings inter se parties have been exchanged in all six issues were framed. From the side of plaintiff as well as defendants oral as well as documentary evidence was led. Initially an issue was raised as to whether in the fact of the present case plaintiff should be relegated to revenue court or not. Trial court ceased of the matter, decided said preliminary issue on 18.07.1979 by taking view that civil court had the authority and jurisdiction to deal with the suit. Against the said decision on the preliminary issue of jurisdiction Civil Revision No. 167 of 1979 was preferred and same was rejected on 05.11.1980 and thereafter trial court considered the claim of the parties on merit and proceeded to dismissed the suit on 28.09.1982. Against the said order Civil Appeal in question i.e. Civil Appeal No. 158 of 1982 was preferred and said appeal in question has been allowed. Suit No. 197 of 1978 has been decreed. At this juncture present second appeal in question has been filed.

(3.) AFTER respective arguments have been advanced, first question to be considered in the present case is, once preliminary issue has been decided in respect of jurisdiction of civil court and the answer of the said question is in affirmative i.e. civil court had jurisdiction to entertain the suit and said order was subject matter of revision and revisional forum has also affirmed said order, can the validity of the said order be still questioned in Second Appeal, or its challenge would by barred by the principal of res-judicata on account of non-questioning of the validity of said decision, under Article 226/227 of the Constitution of India.