LAXMAN SHIVSHANKAR KUMBHAR Vs. SARASWATI DAUGHTER OF CHANBASAPPA

JUDGEMENT

(1.) THIS is an appeal from the order, dated 14-7-1955, passed by the learned district Judge, Sholapur, in appeal No. 178 of 1954, by which he allowed the appeal and remanded the suit No. 48 of 1952 to the Court of the learned Civil Judge (Junior Division), Akalkot, for disposal in accordance with law.

(2.) THIS appeal raises a short but interesting question about the law of res judicata.

(3.) THE respondent No. 1, Saraswati, was the plaintiff in the trial Court. She instituted the afore said suit No. 48/52 for a declaration that she was the sole owner of the suit property and for an in junction, restraining the defendants from interfering with her possession, or, in the alternative, for possession of the suit property. The allegation was that the suit property belonged to Sarswati's full brother Malkappa; that, on Malkappa's death in 1943, the suit property devolved upon Saraswati's mother Ambawwa; that Ambawwa remarried in 1944; and that, on her remarriage, the property devolved upon the plaintiff Saraswati, and, there fore, she had become the owner of the suit property on the remarriage of Ambawwa. Defendant No. 2 in the trial Court is the appellant in this Court. His mother Bhangarevva was the defendant No. 1 in the trial Court. Both these persons resisted the claim of the plaintiff Saraswati. Saras wati's father was one Chanbasappa. The latter was the brother of Shivshankar, the father of defendant No. 2 and the husband of defendant No. 1. The defence of these two defendants was that the property in suit was the joint family property of Chanbasappa and Shivashankar; that Chanbasappa died in 1941 in jointness with Shivshankar; and that, on the death of Chanbasappa, the property be came the joint family property of Shivshankar and the defendant No. 2; and that, on the death of Shivshankar in 1946, Laxman, the defendant No. 2, alone became the sole owner of the suit property. From the aforesaid contentions, it is quite clear that one of the main issues to be tried in the trial Court was whether Chanbasappa died in jointness with his brother Shivshankar. The contention of the defendants was that this particular issue was res judicata by virtue of a decision arrived at in Civil Suit No. 54 of 1950. That suit was brought by the plaintiff Saraswati and her stepsister Parvati as co-plaintiffs. It is not disputed that the aforesaid suit No. 54/50 was brought by the afore said two sisters Saraswati and Parvati for the same reliefs which have been claimed by the plaintiff Saraswati in the present litigation, and that the aforesaid suit was in respect of the same property which is in dispute in the present suit. Both the defendants were parties to the previous suit No. 54/50. The defendants resisted the claim of Saraswati and her step-sister Parvati in suit No. 54/50 on two grounds. The first ground was that, even if the suit property belonged to Chanbasappa the two sisters Saraswati and Parvati were not the heirs of Malkappa. The contention was that, on the remarriage of Ambawwa, the mother of Parvati, the property devolved upon one Neelava, who was the mother of Chanbasappa. It is not disputed that, on the date on which the aforesaid suit No. 54/50 was filed, this Neeiavva was alive. The contention of the aforesaid two defendants in suit No. 54/50, therefore, was that Neeiavva, the grand mother of Malkappa, was a preferential heir to Saraswati and Parvati, the two sisters of Malkappa. The second defence was the same as the defence which has been put forward by the defendants in the present litigation, that defence being that the property was the joint family property of the two-brothers Chanbasappa and Shivshankar and that on the death of Chanbasappa and Malkappa, the suit property had devolved upon Shivshankar and defendant No. 2 by right of survivorship. The suit No. 54/50 was decided against Saraswati and Parvati. Several issues were raised in that suit, three of which were as follows: