SHERO Vs. CHAMARU

JUDGEMENT

(1.) THIS is a second appeal by three defendants against the decision of the learned District Judge of Chamba, whereby he set aside the decision of the Subordinate Judge, Chamba, and granted the plaintiffs respondents a decree for possession of the land in dispute.

(2.) THE land in dispute, measuring 3 acres 6 kanals and 17 marlas, situated in village, .Chakla, belonged to Jeotia, father of respondents 1 and 2. On 23rd Phagun, 1960 B., Jeotia mortgaged this land with conditional sale ('ba bilwafa') in favour of one Mussadi in lieu1 of Rs. 120./ . The mortgage was for the period of one year and it was stipulated that in case the mortgage, amount was not repaid within that period, the mortgage would be considered as a sale. In point of fact, the money was not repaid within that period. On 20th Chet, 1963 B., Mussadi applied to the Collector for grant of a patta. The application was not opposed by Jeotia. Patta was, however, granted to Mauza and Mali, who claimed to be of Jeotia's family and objected to the land passing to .a stranger. Consequently, they were granted the patta on payment of Rs. 120/ to Mussadi.

(3.) (a) 'Zaharia v. Debi', 33 All 51 (FB) (A). There, the facts were that M and Z each filed a suit for pre emption in respect of the same sale, each claiming a right of pre emption preferential to that of the other. Each plaintiff was made a party defendant to the suit brought by the other. A judgment was delivered in the suit of M and a copy thereof was placed on the record as the judgment in the suit of Z; but a separate decree was framed in each suit. The suit of M was decreed: that of Z dismissed. Z appealed from the decree in his own suit, but not from the decree in the suit brought by M, which became final before Z's appeal was decided. It was held by a Full Bench of the Allahabad High Court that the appeal by Z was barred by the doctrine of res judicata.