GAJPAT SINGH Vs. SUDHAN

JUDGEMENT

(1.) One Surta was the original owner of the land which was being cultivated by Gajpat Singh as a tenant up to 1938. From 1950 onwards the revenue entries show that he was cultivating this land on payment of no rent and regarded himself as owner. On 11th Oct. 1966. Surta made a gift of this land and some other property in favour of Sudhan, Gajpat Singh filed a suit for declaration that he was the owner of this property either by purchase or by adverse possession and so Surta could not have made a valid gift. This suit was dismissed as having abated on Feb. 27, 1969, and this dismissal of the suit was affirmed in appeal.

(2.) On June 5. 1970, the present suit for possession of land was instituted by Sudhan. It was resisted by Gajpat Singh inter alia, on the ground that he had become the owner of the property by adverse possession. On the pleas raised by the parties, the learned trial Court framed the following issues : -

(3.) The second appeal filed by the appellant came up before me on Aug. 24, 1973. It was pointed out that there was a sharp conflict of judicial authorities on his point whereas the Lahore and Madras High Courts in Raju v. Ram Chand, AIR 1933 Lah 752, and Kamatchi Ammal v. Athigamudaya Pillai, AIR 1969 Mad 426, took the view that abatement of a suit tantamounts to a judgment in favour of the successful party and the same matter could not be re-agitated in subsequent proceedings, the Allahabad High Court in Bejai Ragho Niwasji v. Tej Narain Lal, AIR 1943 All 99, took the view that a party whose suit had abated could defend its possession in a subsequent suit filed against it. I was inclined to follow the Division Bench decision of the Lahore High Court in Raju's case (supra), but it was pointed out that provisions of O.IX, R.9, Civil P.C., were somewhat analogous to the provisions of O.XXII, R.9, Civil P.C., and in Shivashankar Prasad Sah v. Baikunth Nath Singh, AIR 1969 SC 971, it had been held that the dismissal, for default of the judgment-debtor, of an application filed by him under S.47, Civil P.C., resisting the execution of the decree, was not a final decision of the Court after hearing the parties and the same did not operate as res judicata and the judgment-debtor could raise the same objection in a subsequent application filed by him. From this I inferred that the authority of Raju's case (supra) had been impliedly shaken. At my request, the learned Chief Justice ordered that the controversy in judicial opinion should be resolved by a Full Bench and this is how this case has come up before us.