AJMER SINGH Vs. GURDEV SINGH

JUDGEMENT

(1.) Shrimati Bishni widow of Sabhu died on March 12, 1962, leaving 624 kanals 2 marlas of land in village Phagan Majra, tehsil Sirhind, district Patiala. Sunder Singh was the collateral of Sabhu. Gurdev Singh and others, respondents claim to be the children of Shrimati Jattan daughter of Sunder Singh. On March 5, 1970, Shrimati Gurpal Kaur, respondent No. 6, claiming to be the daughter of Shrimati Jattan and grand-daughter of Sunder Singh, filed a suit for possession of the land of Shrimati Bishni against the appellants alleging that she and respondent Nos. 1 to 5 were her legal heirs. Respondent Nos. 1 to 5 were impleaded as proforma defendants in the suit filed by her. The appellants were the contesting defendants in that suit. They resisted the suit and averred that they had purchased 136 kanals 6 marlas of land from Smt. Bishni vide sale deed dated June 2, 1961, and set up their claim to the remaining land on the basis of her will dated February 22, 1960. They denied that Smt. Jattan was the daughter of Sunder Singh or the respondents were her children. The trial Court held that Smt. Gurpal Kaur as also her brothers and sister (respondent Nos. 1 to 5) were not the grand-children of Sunder Singh and also the will set up the appellants as contesting defendants in that suit was not genuine. The findings against both the parties were incorporated in the decree prepared by the trial Court. Smt. Gurpal Kaur, respondent No. 6, filed Civil Appeal No. 177/401 of 1971, against the decree of the trial Court in which she made the appellants as also her brothers and sister respondents. The appellants also filed Civil Appeal No. 182/403 of 1971, in which they impleaded all the present respondents as respondents. On November 29, 1972, Smt. Gurpal Kaur, respondent No. 6, and the appellants effected a compromise according to which the appellants gave 56 kanals of land to Smt. Gurpal Kaur and later admitted the will by Smt. Bishni deceased in favour of the appellants. In the result, Civil Appeal No. 182/403, filed by the appellants was accepted and the adverse finding against them about the will was set aside and further Civil Appeal No. 177/401 of 1971 was partly accepted and the suit filed by Smt. Gurpal Kaur stood decreed for 56 kanals only.

(2.) Respondent Nos. 1 to 5 then filed a suit for possession of 5/6 share of land of Smt. Bishni (excluding the share of Smt. Gurpal Kaur) against the appellants alleging that they were the heirs of Smt. Bishni through their grand-father Sunder Singh. The appellants contested their suit and raised the objection that in view of the previous litigation, the suit was barred by the rule of res judicata. The trial Court upheld the objection of the appellants that the suit filed against them was barred by the rule of res judicata and consequently dismissed it on May 19, 1975. Respondent Nos. 1 to 5 preferred an appeal and the learned District Judge, Patiala, vide order dated August 2, 1976, reversed the finding of the trial Court and remanded the case for decision on merits. It is against this order that the present appeal is directed.

(3.) The contention of the learned counsel for the appellants is that the view taken by the learned lower appellate Court is erroneous inasmuch as respondent Nos. 1 to 5 were parties to the previous litigation and irrespective of the fact that they were proforma parties, they shall continue to be bound by the decision given therein. It has also been argued that in Civil Appeal No. 182/403 of 1971, filed by the appellants, all the respondents were arrayed as parties and were served. The appellate Court held that the will executed by Smt. Bishni in favour of the appellants was genuine. The fact that such a finding was given on the basis of a compromise entered into between the appellants and Smt. Gurpal Kaur respondent No. 6, would not make any difference and shall be binding on respondent Nos. 1 to 5 as well. The trial Court was, therefore, justified in dismissing the suit filed by respondent Nos. 1 to 5 being barred by the rule of res judicata and the learned District Judge erred in holding otherwise.