NASEEB SINGH Vs. FAQIR SINGH

JUDGEMENT

(1.) appeal is by the defendants who are father and son who resisted the plaintiff's claim for declaration that the plaintiff and defendants are entitled to 1/6th share in all the properties as co-parceners and for an injunction that the plaintiff shall be entitled to 1/18th share against the defendants. The status of the property as co-parcenary was denied in the written statement and parties went to trial for an adjudication on the basis of plaintiff's assertion. At the time of trial, the defendants confronted the plaintiff with an earlier suit which the plaintiff had filed in relation to the very same subject matter where he had sought for the relief of possession of his share in the property on the basis that he is a co-parcener and for the relief of injunction in relation to the specific two items which he claimed to be in exclusive possession. The defendants were also the defendants in that suit. They had been set exparte but the Court did not grant decree in favour of the plaintiff. It did not grant the decree as prayed for. The Court found that the plaintiff had not established the co-parcenary character of the property and that he was entitled to a share thereon. While dismissing the claim for possession it allowed for the relief of injunction to all items of property specified therein on the basis of the plaintiff's documentary proof adduced that the he is in possession thereof leaving it to the defendants to take independent action for recovery of possession.

(2.) An assertion that the previous suit had been only for recovery of possession and that a fresh suit for declaring that he is a co-parcener was not barred, was taken up by the plaintiff as a ground to establish his competency to sue. The defendants took a plea that they had not known about the earlier decree and wanted to contend that it had been obtained by the plaintiff behind their back. All the same, when the suit was decreed in favour of the plaintiff, the defendants took a legal plea which was permissible on the facts declared by the plaintiff himself that he had earlier filed a suit for possession on the basis that he was a co-parcener with reference to suit properties along with defendants and the ultimate finding was that such a status of holding had not been established. When the suit was decreed and the when the defendants preferred an appeal, they made reference to the plaintiff's earlier suit and the dismissal of the plea for recovery of possession as constituting res judicata for obtaining declaratory relief and for injunction. The Court dismissed the appeal of the defendants to hold that the defendants had not taken a defence of res judicata and not even an issue had been framed. It proceeded to therefore, dismiss the appeal. The following substantial questions of law arise for consideration:-

(3.) The respondent in caveat was interested in having the disposal of the appeal itself, inspite of my informing that the case could be admitted and stay granted. He pressed for an adjudication and since the counsel wanted to argue on merits, I have, after framing the substantial questions, proceeded to dispose of the appeal as under:- Res-judicata is a question of law which would require to be proved on the facts, before it is accepted in any case. Where a plea of bar of suit is taken, it shall be expressly brought to the attention of the parties and the issue shall be considered. If there was no plea of res judicata made in the written statement and hence the issue was not framed, the effect of earlier decree would become essential for consideration when the matter was specifically brought before it. It was not even so much required for defendant to plead in this case because the plaintiff had himself referred to the earlier suit and had attempted to explain the maintainability of his own suit. The suit proceeded on an assumption that since the earlier suit did not contain the relief of declaration, the subsequent suit with a relief of declaration was materially and substantially different. The plaintiff, therefore, had himself volunteered an explanation about institution of earlier suit that it was "for recovery of possession on the basis that he was a co-parcener", and the subsequent suit was "for a declaration that he was a co-parcener". When the appeal was filed by the defendants, the plaintiff's specific knowledge to the fact through a ground of appeal that the challenge to the suit was only on the basis that the earlier adjudication, although rendered when the defendants had been set ex-parte, would constitute res judicata. The plaintiff was bound to explain the same and the Court was required to consider it.