KUMARMONI SA Vs. HIMACHAL SAHU

JUDGEMENT

(1.) Plaintiff is the appellant in this Letters Patent Appeal against a reversing judgment in a suit for partition and for allotment of the property claimed by the plaintiff to have been purchased by him from defendant No. 1 as Karta of the joint family consisting of defendants Nos. 2 and 3. Plaintiff claimed that defendant No. 1 was the father of his two sons-defendants Nos. 2 and 3. The properties described in Schedules A and B of the plaintiff belonged to the joint family of defendants Nos. 1 to 3 and defendant No. 4, the wife of defendant No. 1. The first defendant as Karta of the joint family, sold the disputed properties by a registered sale deed dated 18-5-1963 for Rs. 1,710/- to the plaintiff. The B schedule properties had been mortgaged with defendant No. 5 by the time of the sale. Therefore, defendant No. 1 put the plaintiff in possession of the remaining properties except those covered by schedule B. It was agreed at the time of the sale that plaintiff would pay up the mortgage dues of the defendants and redeem the property. Accordingly, plaintiff filed Title Suit No. 64/66 in the Court of the Munsif for redemption impleading all the present defendants. The present defendant No. 1 also joined the plaintiff as a co-plaintiff in the said suit. The learned Munsif held that the sale in favour of the plaintiff was not for legal necessity. Accordingly, the relief for redemption was not granted to the plaintiff but it was granted to defendant No. 1 as co-plaintiff. The plaintiff filed the present suit for partition. Defendant No. 2 in his written statement clearly took the plea that the earlier decision operated as res judicata for the present suit; that the present suit was barred by O.2 R.2 of the Civil P.C. and the plaintiff was not entitled to maintain the action. The trial court held that the suit was barred by res judicata. The question of res judicata was argued at length before the learned lower appellate court and the learned appellate Judge reversed the finding of the trial Court on the said issue and held that the suit was not barred by res judicata. Defendant No. 2 came up in Second Appeal to this Court. The Second Appeal was allowed and it was held that the suit was barred by res judicata.

(2.) The only point for consideration in this appeal is whether the present suit is barred by the principles of res judicata Mr. Sinha, the learned counsel for the appellant, contended that the learned Single Judge has not taken into consideration the fact that the Munsiff who tried the previous suit had no pecuniary jurisdiction to try the present suit. It is not disputed that considering the valuation of both the suits, the Munsif who tried the previous suit had no jurisdiction to try the present suit, Sec. 11 of the Civil P. C. provides that no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. The learned counsel for the appellant states that the previous suit was in respect of only the properties put under usufructuary mortgage, but the claim in the present suit is for partition in respect of properties including the properties of the former suit and according to the valuation of both the suits, the Court who tried the former suit was not competent to try the subsequent suit for want of pecuniary jurisdiction. Undoubtedly, the parties are the same and the property in dispute in the former suit was a part of the properties claimed in the present suit. The former suit was a suit for redemption and in that suit it was held that the present plaintiff who claimed by virtue of a sale in his favour had acquired no right to the property, inasmuch as the sale was not supported by legal necessity. The present suit is for partition of properties including the properties which were the subject-matter in the suit for redemption. The finding that the plaintiff has no right to the properties involved in the previous suit was concluded. By virtue of sale in his favour, the plaintiff has claimed partition of those properties as well as other properties in the present suit. As it has been held in the previous suit that the plaintiff has acquired no right to property, it is contended by the contesting defendant that by the virtue of the finding in the previous suit, the claim of the plaintiff for partition in the present suit is barred by principles of res judicata.

(3.) It is also not disputed that if it is held that the present suit is barred by principles of res judicata, there is no necessity of giving any finding on other matters arising in the the suit. By recent amendment of the Civil P. C., Explanation VIII has been added to Section 11, which runs as follows: