HAR CHAND Vs. RANJIT

JUDGEMENT

(1.) This is defendant's Second Appeal against whom suit for possession of agricultural land has been decreed by both the Courts below.

(2.) Ranjit, plaintiff, filed the suit for possession of agricultural land alleging that defendant Har Chand was his real brother, they both being sons of Gola, son of Mai Sukh; that Gola died about 25 years prior to the institution of the suit; that Har Chand, defendant No. 1, was adopted by Mst. Jiwani, widow of Daia, after Gola's death and he was, thus, son of Mst. Jiwani; that following the death of Smt. Jiwani, her property was mutated in favour of Har Chand, being her adopted son, and he was, thus, owner-in-possession of the estate left behind by Smt. Jiwani; that in view of the adoption of Har Chand by Mst. Jiwani, he was not entitled to any property left behind by Gola, his natural father, and that the plaintiff was the exclusive owner of the property in question, being Gola's sole heir; that the suit land was owned and possessed by Gola and any entry in the revenue record mentioning Har Chand as the owner of the suit land was illegal, against facts and not binding on the plaintiff; that Har Chand had delivered possession of the suit land to defendant No. 2, i.e., Munshi, and, therefore, he has been made a party to the suit. It was also alleged that earlier Har Chand had filed a suit against the plaintiff, and in the appeal in that suit it was held that Har Chand, defendant, was not entitled to any share in the property of his natural father, and, therefore, the same would operate as res judicata between the parties. The suit was resisted on the ground that their father Gola died about 40 years prior to the institution of the suit; that Har Chand, defendant, was never adopted by Smt. Jiwani, as alleged; that he had acquired only occupancy rights in the land belonging to Jiwani and, thus, he became the owner thereof; that after Gola's death, his land was also mutated in favour of Har Chand, and his alleged adoption by Smt. Jiwani was under customary law, if it were to be concluded that the adoption in question did take place; that he never filed any suit in respect of the land in dispute and the former suit has, therefore, no relevance or bearing qua the present suit; that the residential site of the house involved in the earlier suit had been purchased by the plaintiff from the Custodian, and that the plaintiff had no cause of action. The trial Court found that Har Chand, defendant, was the adopted son of Smt. Jiwani, having been adopted as such after the death of their father Gola, and he did inherit the estate of Smt. Jiwani, and was in possession thereof. The main controversy between the parties before the Courts below was under issue No. 7-A, which related to the question of res judicata in view of the earlier judgement dated 21st December, 1975 (Copy Ex. P1). The learned trial Court found that the said judgement operated as res judicata, and, so, the suit was decreed in favour of the plaintiff. In appeal, the learned Senior Sub Judge with enhanced appellate powers affirmed the said finding of the trial Court, and, thus, maintained the decree dismissing the suit. Dissatisfied with the same, defendant Har Chand has filed this Second Appeal.

(3.) Learned counsel for the appellant contended that the earlier judgement rendered in the suit filed by the appellant-defendant would not operate as res judicata because the plea taken by the plaintiff Ranjit (defendant in that suit) had been abandoned by him at the time of arguments in that suit. It was Issue No. 4 that was framed by the trial Court in that suit, which reads as under :-