BOHAR SINGH Vs. DALIP KAUR

JUDGEMENT

(1.) THE respondents filed a suit for declaration of title in the suit land on the basis of a registered sale deed dated 2.4.1967, averring inter-alia that land was under mortgage and plaintiff redeemed the same and took possession of the mortgage land also. Defendants got mutation entered in their favour and mutation of redemption was also claimed to be false. Defendants illegally mortgaged the suit land in favour of a Cooperative Bank which did not bind the plaintiffs. Defendants contested the suit inter-alia on the basis of an earlier decree.

(2.) IN view of evidence led by the plaintiffs, mainly in view of sale deed Ex. P.1, title of the plaintiff was held to be proved. Previous judgment and decree Exhibit D.1 and D.2 were held not to be res judicata as the previous suit was for injunction and question of title was not directly and substantially in issue.

(3.) LEARNED counsel for the appellants submitted that finding of the courts below on the issue of res judicata was erroneous and substantial question of law whether judgment in the former suit for injunction will operate as res judicata on the question of title was involved. He submitted that in a previous suit for injunction, one of the issues was whether plaintiffs were owners in possession, while finding was only that they were in possession and there was no finding of their title. Reliance is placed on judgment of the Supreme Court in Sulochana Amma v. Narayanan Nair, 1993(3) R.R.R. 682 : AIR 1994 SC 152, Para 8. In the said judgment, following observations were made which have been relied on by the learned counsel for the appellants :-