AB RASHID Vs. GH MOHD AND GUL MOHD

JUDGEMENT

(1.) IN previous litigation between the predecessors -in -interest of the parties, the petitioner herein was held to be a co -sharer of the suit property and ordered to be put into joint possession as co -sharer alongwith other co -sharers. As the. physical possession was not handed over to the petitioner herein, the respondents filed a new suit in the court of Sub Judge, Kishtwar, for declaration to the effect that they were the owners -in -possession and the basis of their adverse possession alongwith the consequential relief of injunction restraining the petitioner herein from interfering with in their possession. It was averred in the plaint that as no physical possession, was delivered in the execution proceedings and they continued to be in uninterrupted possession of the suit property till the institution of the suit, they were entitled to be declared as owners and the petitioner was required to be restrained by the issuance of appropriate injunction from interfering with their possession. The suit was resisted on the ground that since the controversy had been set at rest, the suit filed being barred by the principles of res judicata, was not maintainable. On the pleadings of the parties, the trial court vide order dated 29.11.1986, framed the following two preliminary, issues: 1) Whether the suit is hit by the, principle of resjudicata? OPP

(2.) ) Whether the suit is not maintainable in the present form? OPD. The trial court held that the suit was not hit by principle of res judicata as the questions involved in the subsequent litigation were not directly and substantially involved in previous litigation, the suit was maintainable. It was also held that there was no material on the record to indicate as to how the suit was rot maintainable in the form filed in the trial court. The Court thereafter framed further issues and directed the parties to lead evidence vide the order impugned in this revision petition. It is submitted that the order of the trial court being against law and facts is not maintainable and was liable to be quashed. 2. Vide court order dated 17.5.1991, this revision petition was directed to be listed before the Division (Bench as important question of law were required to be authoritatively pronounced.

(3.) IT is not denied that Habib Sheikh, father of the petitioner herein, filed a suit for declaration in the court of Sub Judge, Kishtwar, on 20.8.1955 seeking declaration that he was entitled to half of the land mentioned in the plaint as owner. His case was that Lassa, father of the defendants, was his real brother and they lived jointly being joint in mess, business and property. Habib claimed to be in the government service and Lassa lived at home who managed the family affairs. The suit property was purchased jointly by the money supplied by the plaintiffs but as he was not having agriculturist certificate, sale -dead was got executed in the name of Lassa alone who possessed the requisite certificate. Lassa died some months before the institution of the said suit and his sons refused to recognise plaintiffs title over the suit land necessitating the filing of the suit. After a protracted trial, the suit of Habib Sheikh was decreed on 9.9.1968. The matter was set at rest by this Court vide judgment passed in civil second appeal No. 88/71 decided on 28.11.1972 by upholding the decree passed by the trial court. The symbolic possession was thereafter delivered to the decree holder on 23.12,1972 at a time when the Letters Patent Appeal against the order of the learned Single Judge was still pending in the Court which was later disposed of on 4.3.1985.