S GURCHARAN SINGH Vs. AMAR SINGH

JUDGEMENT

(1.) THE facts giving rise to this Letters Patent Appeal are these. Moman was the owner of the property in dispute, measuring 55 Bighas 1 Biswas. On 25th July, 1955, he sold the same for Rs. 2500/-to Suba Ram, his brother Manphul Singh and one Chandar Bhan. This sale led to a suit for pre-emption, which was filed by gurcharan Singh on 24th July, 1956. On 3rd October, 1956, Amar Singh, Gulab singh and Rattan Singh, the three minor sons of Moman, brought a suit, through their mother Shrimati Ram Piari, for possession of this land against the vendees on the usual allegations that the land was ancestral and there was no legal necessity for their father to sell the same. It was alleged that on the death of their father on 23rd May, 1956, they got entitled to the possession of the land. On 12th december, 1956, Ram Piari, acting as the guardian of her minor sons, effected a compromise with the vendees, on the basis of which the suit was dismissed and the parties were left to bear their own costs. On 18th March, 1957, the preemption suit filed by Gurcharan Singh was decreed against the vendees. On 25th October, 1960, the minor sons of Moman brought another suit through Budh Ram, their grandfather as their guardian, for possession of the land on the same grounds as were alleged by them in the first suit. This suit was instituted against the vendees and the pre-emptor Gurcharan Singh.

(2.) TWO of the various pleas taken by Gurcharan Singh were that the previous judgment dated 12th December, 1956, was a bar to the present suit filed by the minor sons of Moman and that Section 41 of the Transfer of Property Act was applicable to the case as he had taken possession of the land after getting the preemption decree in his favour. It may be stated that Ram Piari, the mother of the plaintiffs, was made a defendant, because Gurcharan Singh had also taken the plea that she was a necessary party to the suit.

(3.) THIS suit was dismissed by the trial Court on the 7th June, 1961, holding that the previous judgment acted as res judicata and was a bar to the institution of the present one. On 24th November, 1961, the learned Additional District Judge, karnal, accepted the appeal of the plaintiffs and held that the suit was not barred by res judicata, as there was no decision of the first suit on merits. He further held that there should have been an issue struck by the trial Court on the question of gross negligence and collusion of the guardian of the plaintiffs in the first suit. He, consequently, remanded the case for fresh trial to the lower Court and gave permission to the plaintiffs to amend their plaint and raise both the pleas regarding the gross negligence and the collusion of their guardian in the previous suit.