TH BALWANT SINGH Vs. TH NASIB SINGH

JUDGEMENT

(1.) THIS is plaintiffs first appeal and arises out of a suit instituted by them for possession of 2139 Sq. feet of vacant site situated in Purani Mandi, session of this land over 12 years prior to the date of the suit and that defendant inherited the land from Mst. Bilori who had taken him in adoption. The trial Court after going through the pleadings f the parties raised various issues and the important among them are the following: -

(2.) THE parties adduced evidence and the learned trial Judge held that the plaintiffs miserably failed to prove their title to or their possession over the property in dispute within 12 years of the suit and that the judgment of the High Court did not operate as res judicata in the present case. The plaintiffs suit was accordingly dismissed with costs. The plaintiffs have appealed.

(3.) THE counsel appearing for the appellants wanted to take up the point of res judicata first. He submitted that if he succeeded in showing that the decision of the High Court in second appeal operated as res judicata in the present case it will not be necessary for him to urge the other ground mentioned in the grounds of appeal. As regards the question of res judicata the learned counsel argued that if the case does not fall within .four corners of section 11 of the Code of Civil Procedure general principles of res judicata would apply and under section 43 of the Specific Relief Act a declaration made in the suit between the same parties will be binding on them in the subsequent suit. It is pointed out that the defendant had sought declaration that he was entitled to claim compensation for the land and the latrinh standing thereon from the Municipality. That suit was contested by the present plaintiffs court refused to grant declaration in the plaintiff (the present defendant) and his suit. The decision of the trial Court was up -1 held by the High Court in second appeal. The counsel for the appellants argued that in that suit Nasib singh the parties were the same and the property in regard to which it was brought was a portion oil the property which is the subject -matter of dispute in the present suit and the declaration having been refused by the Courts in that suit the findings in that case would be binding on the defendant in I the present suit under section 43 of the Specific Relief Act. The question that falls for determination is whether the general principles of res judicata would be applicable to the case which is not covered by section 11 of the Code of civil Procedure and whether under section 43 of the Specific Relief Act the defendant is barred from asserting his title to the land in dispute in view of his having failed to obtain declaration of tide in respect of another portion of land which is not the subject -matter of the present suit. For the application of section 11, C. P. Code, certain conditions have necessarily to be fulfilled and these are : -