VED PARKASH Vs. BALRAM DASS

JUDGEMENT

(1.) THIS is Ved Parkash plaintiffs appeal in a suit for possession of property in dispute as described in the plaint known as shop constructed on Khasra Nos. 1178/1119 and 1179/1119 situated in village Amloh which was decreed by the trial Court on January 7, 1988 but dismissed by the lower appellate Court on appeal on December 2, 1988. Earlier the plaintiff had filed suit No. 244 of 1984 against the defendant for possession of the shop which was dismissed on June 10, 1987. Hence the present suit was filed by the plaintiff claiming to be owner of the shop which was alleged to be in illegal occupation of the defendant Balram Dass. The suit was contested by the defendant, inter-alia, on the preliminary objections that the same was barred under Order 23 Rule 1 to 4 of the C. P. C. as well as by the principles of res Indicata and Order 2 Rule 2 of the C. P. C. The defendant claimed to be joint owner of the land comprising Khasra numbers mentioned above and the plaintiff could get his share partitioned. The land of aforesaid Khasra Numbers were jointly owned by Babu Ram to the extent of 1/2 share from whom the defendant purchased on April 30, 1985 and raised a super structure. Earlier he was tenant of Babu Ram. The ownership of the plaintiff over the disputed site was disputed. Since the earlier suit was dismissed, and findings recorded therein adverse against the defendant were not binding, as the defendant had no right of appeal. Even otherwise such findings were not necessary to be recorded. The suit was otherwise dismissed in the replication filed by the plaintiff, the stand taken up in the plaint was reiterated. The trial proceeded on the following issues:

(2.) ISSUES Nos. 1 and 2 were decided together in favour of the plaintiff who was held to be owner of the shop in question and the defendant Balram Dass in unauthorised occupation thereof. Issues Nos. 3 and 4 were not pressed before the trial Court on behalf of the defendant. Under issue No. 5 the plaintiff was held to have locus standi to file the suit. Issue No. 6 was decided against the defendant and the suit for possession was held to be maintainable. Under issue No. 7 it was held that for purposes of court-fee and jurisdiction, the value should be Rs. 1000/-, However, the plaintiff had paid court-fee of Rs. 20/- only and he was allowed to make good deficiency of the court-fee. Ultimately the suit was decreed for possession of the suit property. The Additional District Judge, on appeal, filed by the defendant reversed the findings of the trial Court, on issues Nos. 1 and 2. The plaintiff was held to be a co-sharer in the land comprising in two Khasra numbers mentioned above and that he could get the same partitioned. The defendant was held to be owner of 1/2 share in the land comprising aforesaid khasra numbers as having purchased the same from Babu Ram, a co-owner and was also held to be owner as such, and thus the suit was dismissed.

(3.) LEARNED counsel for the appellant-plaintiff has argued that the plaintiff should be held to be absolute owner of the shop in dispute and the site underneath in view of the findings recorded by the civil Court in the earlier suit. It was also held therein that the plaintiff was the owner and the defendant trespasser. This contention is devoid of merit. Since the previous suit was dismissed the defendant had no opportunity to challenge the findings recorded in that suit as ultimate decision was in his favour. Exhibit P. 2 is the Judgment in the previous suit No. 244 of 1986 which was decided by the Sub Judge I Class, Dasuya, on June 10, 1987. This was held to be barred under Order 23 Rule 1 and Order 2 Rule 2 and under Section 11 of the C. P. C. Earlier the plaintiff had filed a suit which was fixed for December 5, 1985 in the Court of Additional Senior Sub Judge, Dasuya, Shri Rajinder Singh Maini, Advocate, for the plaintiff Ved Parkash made a statement that the suit be dismissed as withdrawn. The said suit was as such dismissed without permission of the Court to file fresh suit on the same cause of action. In that suit the plea of Ved Parkash plaintiff was that Balram Dass defendant was his tenant in the shop in dispute. Under issue No. 5 the plaintiff was held to be owner of the shop in dispute and under issue No. 6 it was held that the defendant was not the owner. It is those findings on issues Nos. 5 and 6 that the plaintiff Ved Parkash is relying to prove his title alleging that the same would operate as res judicata. As already stated above, since the suit was dismissed as a whole, the plaintiff cannot take any benefit of findings so recorded as the defendant had no opportunity to challenge the same. In this context reference may be made to the decision of the Full Bench of the Patna High Court in Arjun Singh and Ors. v. Tara Das Ghosh,1 A. I. R. 1974 Patna 1. The suit was dismissed on the preliminary issue regarding maintainability of the suit for want of notice under Section 80 of the C. P. C. , and for absence of cause of action. On other issues also adverse findings were recorded. It was held that the findings on other issues so recorded could not operate as res judicata as the defendant had no right to file an appeal.