TH ANCHAL SINGH Vs. TH KRISHAN SINGH

JUDGEMENT

(1.) THIS appeal is directed against the decision of the District Judge at Jammu who, on appeal, reversed the judgment of the Subordinate Judge, Jammu, and remanded the suit to him for disposal according to law.

(2.) THE suit in this appeal was instituted in (the Court of the Subordinate Judge, Jammu by respondents 1 to 4 against the appellant and his vendor. Some other persons also were impleaded as pro forma defendants, but as they are of no consequence to this appeal, they need not be noticed further. The plaintiffs sought a declaration that Kahan Singh, the second defendant, had no right or title to alienate certain properties and that the sale of those properties by him in favour of the appellant, first defendant, is therefore void and that they, as members of the family of the last owner of the properties, are entitled to actual possession of them. The vendee raised several defences to the suit; but the one with which this appeal is concerned relates to the plea of res judicata. It is based on the following facts.

(3.) THE plaintiffs had in a prior litigation sought to pre -empt the sale executed in favour of the present appellant by Kahan Singh, the second defendant. That suit was decreed and the plaintiffs were directed to pay the price to the vendee on or before llth Poh 2011 in default of which the suit was to stand dismissed. The plaintiffs did not make the payment as directed and the suit stood dismissed. No question of want of title on the part of the vendor to effect the sale in favour of the present appellant was raised in that suit. The specific basis of the present suit is that Kahan Singh .the vendor had no title to alienate the property. As this ground of attack might and ought to have been raised in the previous suit for pre -emption the plaintiffs are hit by the doctrine of constructive res judicata embodied in Explanation IV to section 11 of the Code of Civil Procedure.