ANANT RAM Vs. MT. JANKI

JUDGEMENT

(1.) ANANT Ram and his brother, Jagdish, filed a suit in the Court of the Subordinate Judge, first class, Bilaspur, wherein they sought a declaration that a sale -deed executed by Mathra, deceased husband of Mt. Janki, defendant 1, in favour of Lachhu and Daya Ram (defendants 2 and 3) was without legal necessity and consideration and, therefore, would not affect their reversionary rights after the death of Mt. Janki.On an objection preferred by Daya Ram, defendant 3, the trial Court dismissed the suit, holding that it was barred by the principles of res judicata, i.e. by reason of the dismissal of a previous suit No. 76 of 1997 (Ganga Ram and others versus Mathra and others), based on the same cause of action.

(2.) ANANT Ram and Jagdish then went up in appeal to the learned District Judge, but were unsuccessful there. Thereupon, they filed a second appeal in this Court. For reasons stated in this Courts order of yesterdays date, however, it was held that no second appeal lies in this case. At the request of the learned counsel for the appellants, the memorandum of appeal was treated as a revision petition and admitted on the following point : "Whether the Courts below have erred in holding that the suit was barred by the provisions of S. 11, Civil P. C."

(3.) I find, however, that the learned District Judge has gone into the question as to whether the evidence on the record makes out any case of negligence on the part of Ganga Ram. On this point, there are the statements of three witnesses, Jiwanu, Lachhu and Gulaba. Jiwanu (P. W. 1) merely states : - "Sukh Ram aur Ganga Ram ne koi parwi muqadma sabka nahin ki - har do mudian ke mafad ki koi parwah na ki gai." No further details have been given. A bald assertion that Ganga Ram was negligent would not be sufficient to make out a case of negligence. Lachhman (P. W. 2) has stated : - "Ganga Ram ne dawa kiya tha na malum parwi karta tha yah nahin." In view of his frank admission that he was not aware whether Ganga Ram conducted the case or not his statement does not help the plaintiffs. Gulaba (P. W. 3), in his turn, deposed that : - "Sukh Ram aur Ganga Ram ne khud parwi nahin ki thi." None of these three witnesses has made any serious attempt to show how and in what respect, Ganga Ram had failed to conduct the case properly on behalf of Anant Ram and Jagdish, who were then minors and who were represented by him as their guardian -ad -litem.