AMBIKA PRASAD BAKSHI Vs. PRABHUDAYAL MALI

JUDGEMENT

(1.) THE petitioner aggrieved by the order (Annexure P-l), dated 17-11-2003 passed by First Additional Judge of the Court of 1st Civil Judge, Sagar, in Civil Original Suit No. 34-A/2003, has filed this petition. By the impugned order, the Court below allowing the application filed by respondents under Section 9 of CPC recorded a finding that the suit is barred by principle of res judicata and dismissed the suit.

(2.) THE learned Counsel appearing for petitioner submits that the order passed by the Court below is neither appealable nor revisable and this petition may be entertained. The contention is that the Trial Court without following the procedure of law decided the application filed by respondents. Before deciding the application under Section 9 of CPC and to consider the plea of res judicata, it was necessary for the respondents to place all material on record and the Trial Court ought to have considered the pleadings of previous suit, issues and the judgment without which plea of res judicata can not be decided. Reliance is placed to a Judgment of this Court in the case of State of M. P. v. Babu Lal, 1992 JLJ 25.

(3.) CONTENDING aforesaid, the learned Counsel for petitioner submits that this petition may be entertained and the order passed by the Trial Court may be set aside. In respect of maintainability of this petition, the learned Counsel has relied on the judgment of the Apex Court in case of Ratan Singh v. Vijaysingh, AIR 2001 SC 279. From the perusal of the order (Annexure P-l) passed by the Trial Court, it appears that the plaintiff petitioner was claiming the suit property as a successor of Sardar Bahu. Previously, one Gokul Prasad filed a suit against Laxman and Jairam, which was dismissed by the Trial Court. Against the judgment and decree of the Trial Court, appeal was preferred by Gokul Prasad, but remained unsuccessful. In Second Appeal No. 1034/65, the High Court on 18-7-1972 while setting aside the judgment and decree of the Courts below decreed the suit of Gokul Prasad. Against the judgment and decree of the High Court, Jai Ram and Hari Ram (legal heirs of Laxman) filed S. L. P. before the Apex Court, which was granted. The Apex Court in Civil Appeal No. 2272/1972 set aside the order passed' by the High Court and the judgment of the Trial Court was affirmed, it is found that the defendants Laxman and Jairam were sub-tenants and title of plaintiff Gokul Prasad was not found proved. Subsequently, Gokul Prasad died. His wife Sardar Bahu succeeded and after the death of Sardar Bahu, plaintiff Ambika Prasad who is nephew of Gokul Prasad has filed this suit on the ground that he being the sole successor of Gokul Prasad and Sardar Bahu is bhumiswami of the land and is in possession of the land. He also pleaded that on 16-6-1960, Jai Ram handed over possession of this land to Gokul Prasad. The Supreme Court has finally decided the matter, and thereafter the present suit has been filed by the petitioner claiming rights through Gokul Prasad and Sardar Bahu, Considering aforesaid, the Trial Court found that the present suit is barred by principle of res judicata and dismissed it.