BHASKAR BARAKU TAHSILDAR Vs. GANGARAM SUPADU TAHASILDAR

JUDGEMENT

(1.) THE judgment in Regular Civil Suit No. 36/1973 passed by the trial Court dismissing the suit of the respondent plaintiff on the ground of applicability of principle of res judicata and bar of limitation has been set aside by the lower Appellate Court by the common order dated 23-1-1984 in Civil Appeals Nos. 56/1980 and 170/1980 and the matter is remanded for deciding the suit on merits. The appellants aggrieved by the same, has preferred the present appeals which involve common questions of law and facts and, therefore, were heard together and are being disposed of by this common judgment.

(2.) THE Regular Civil Suit No. 95/1963 filed by one dagubai claiming 1/6th share in her husband s property was decreed by the trial Court and during the pendency of the appeal No. 181/1964 arising from the said decree of the trial Court said Dagubai expired. The appellants herein claimed to be the legal representatives of Dagubai by virtue of Will stated to have been executed by said Dagubai in their favour and, therefore, they were brought on record in place of Dagubai during the pendency of the said appeal. The said appeal was dismissed on 31-8-1965 and the Second Appeal against the same was also dismissed by this Court on 27-2-1971. Thereafter, the respondent No. 1, herein filed Regular civil Suit No. 36/1973 challenging the said will on the ground that the same was obtained by the appellants herein from Dagubai by taking undue advantage of the circumstances prevailing then. The appellants while denying the claim of the respondent, raised two issues, to be tried as preliminary issues, regarding the non-maintainability of the suit on the ground of applicability of principle of res judicata and bar of limitation and secured favourable judgment on both the issues from the trial Court which has been reversed by the lower Appellate Court by the impugned order.

(3.) AS regards the applicability of the principle of res judicata, the contention of the appellants is that during the pendency of earlier Appeal No. 181/1964, when Dagubai expired, pursuant to the claim of the appellants herein to the legal heirship of Dagubai based on the Will in question, the lower Appellate Court had occasion to decide the point about the legality and validity of the said Will while deciding the matter under Order XXII, Rule 5 of the Code of civil Procedure, 1908, in the said appeal, to which the respondent No. 1 who is plaintiff in the present proceedings, was a party and the decision was not interfered with by the High Court in the Second Appeal and, therefore, the said decision on the said point has attained finality and is binding upon the parties. Being so, it is the contention of the appellant that, it cannot be reopened on any ground whatsoever in view of the provisions contained in section 11 of the Code of Civil Procedure.