RAMNIVAS SHARMA Vs. DINESH SHARMA

JUDGEMENT

(1.) THIS Civil Revision is directed against the order dated 25.9.08 passed by the Court of Additional District Judge, Ambah, District Morena, in Civil Suit No. 3A/08 rejecting thereby an application under Order VII Rule 11 of the Code of Civil Procedure based on the plea of res judicata.

(2.) IN order to establish the applicability of plea of res judicata, it is necessary to describe the earlier litigations between the parties. Earlier, there were various litigations between the parties which are described herein: (i) There situates the disputed immovable property comprised in Survey No. 1676 Min 1 and 1676 Min 2 at Kasba Ambah which includes constructed property. Civil Suit No. 5A/01 [Previously Civil Suit No. 12A/97, 69A/98] was instituted by Pt. Ramprasad Pujari Dharmik Trust Dharmashala and six others against Ramnivas Sharma [defendant/petitioner] in respect of the suit property for declaration that suit property was a trust having been created by virtue of registered trust deed dated 4.3.82 by Deviprasad and that the plaintiffs are its trustees. Permanent injunction was also sought restraining the defendants from running school in the suit property and from changing its nature. Copy of plaint is on record as Annexure P-3. Permission from the court for the suit was obtained under Section 92 of CPC vide order dated 15.9.97 which is on record as Annexure P-5. (ii) Civil Suit No. 6A/01 was instituted by defendant/petitioner claiming himself to be the adopted son of Deviprasad against various defendants including plaintiff no. 2 to 7 of Civil Suit No. 5A/01 with various allegations. The alleged trust was disowned. Competence of Deviprasad to create trust was also disputed. Declaration was sought that the suit property is a personal property of the plaintiff and defendants are liable to be restrained from interfering into it. Copy of plaint is on record as Annexure P-4. (iii) Civil Suit No. 5A/01 and 6A/01 were consolidated and were decided by a common judgment and decree dated 19.9.05 by the Court of District Judge, Morena. Civil Suit No. 5A/01 was dismissed whereas Civil Suit No. 6A/01 was decreed in favour of the plaintiff i.e. defendant/petitioner. Consequently, the suit property was held to be a personal property of the defendant/petitioner who was found to be the adopted son of Deviprasad. It was not found to be a trust property. Copy of the judgment and decree dated 19.9.2005 is on record as Annexure P-6. (iv) First Appeal No. 565/05 was submitted by defendants of Civil Suit No. 5A/01. A compromise was entered into before this Court between the parties vide dated 17.10.06. According to the compromise, plaintiffs of Civil Suit No. 5A/01 admitted the ownership of the defendant/petitioner vide Annexure P-7. Consequently, the appeal was dismissed as having been rendered infructuous in view of the compromise as revealed in Annexure P-8. (v) A review petition was preferred by present respondents No. 1 to 3 disputing illegality of the compromise which was registered as MCC No. 499/07 which was dismissed on 13.11.07 vide Annexure P-9 with an observation that remedy to file separate suit is available which may be resorted to by the revisionists. (vi) Pursuant to the order contained in Annexure P-9; plaintiffs/ non-petitioners No. 1 to 6 instituted Civil Suit No'. 3A/08 against the defendant/petitioner and respondents No. 7 to 11 for declaration of title and perpetual injunction with allegations that the suit property belonged to Deviprasad @ Deviram whose pedigree is as follows : <IMG>JUDGEMENT_156_MPJR1_2011Image1.jpg</IMG> Deviprasad executed a registered trust deed dated 4.3.82 creating thereby a trust in the name of Pt. Ramprasad Pujari Dharmik Trust. Suit property was dedicated to the said trust as Dharmshala. IN May, 2007, defendant/petitioner tried to alienate the suit property asserting his own title. Plaintiff collected information when they came to know that in the consolidated proceedings of Civil Suit No. 5A/01 and 6A/01 it was found by the District Judge that trust was created by Deviprasad in respect of the suit property for the purpose of Dharamshala vide registered trust deed dated 4.3.82. However, in EA. 565/05,-a"compromise was submitted in a fraudulent and collusive manner in order to give undue benefit to the defendant/petitioner and consequently, the appeal was withdrawn on 15.11.06. It is pleaded in the plaint that the said decision was challenged by the plaintiffs/non-petitioners No. 1 to 6 in MCC No.499/07 wherein a liberty was granted to institute a Civil Suit to challenge the validity of compromise and consequent dismissal. IN exercise of that liberty Civil Suit No. 3A/08 has been instituted with allegations that Deviprasad had purchased the half share of Lakshmibai widow of Bhagwandas vide registered sale deed dated 30.12.65 and was thus competent to execute the registered trust deed. The sale deed was suppressed fraudulently and collusively with the result that Deviprasad was not found competent vide Annexure P-6. Similarly, it has been pleaded that defendant is not the adopted son of deceased Deviprasad and had no personal right, title or interest in the suit property. Despite this, appeal was got dismissed fraudulently and collusively. Plaintiffs claimed the following reliefs : (i) Suit property may be declared a public property having been owned and occupied by the public at large and the Collector, Morena, may be declared as its Manager. Suit property may be directed to be maintained as Dharmshala for public charitable purpose. (ii) Judgment and decree passed in Civil Suit No. 5A/01 and 6A/01 may be declared null and ineffective on account of having been obtained fraudulently and collusively and it may be declared that the defendant/petitioner has not personal title or possession over the suit property. (iii) Registered sale deeds dated 10.1.07, 16.3.07 and 26.3.07 executed by defendant/petitioner in favour of remaining defendants may be declared null and void conferring no title on the alleged purchasers. (iv) Defendants may be permanently restrained from causing damage to the suit property by sale, transfer, demolition or otherwise.

(3.) SHRI H.D. Gupta & SHRI S.B. Mishra, learned Senior Advocates appearing for rival parties made their respective submissions which have been considered in the light of the material on record.