KESA Vs. BHOPAL SINGH

JUDGEMENT

(1.) THIS second appeal has been filed against an appellate judgment and decree of the learned Addl. Commissioner Jaipur-1 dated 20. 1. 1960. It appears that the plaintiffs filed the suit with the averment that the respondents No. 1 to 4 had unlawfully taken possession of the suit-land which had ever since been in the cultivatory possession of the appellants and respondent No. 5 Shri Bhanwarsingh. It was also stated that as the plaintiffs used to go to Ahamedabad in search of livelihood, the land in question used to be cultivated by their third brother namely defendant No. 5 on their behalf and on behalf of himself as co-sharers in the holding. On being dispossessed in a similar manner, respondent No. 5 had brought a suit against the respondents No. 1 to 4 which was at first decreed by the trial court but was finally dismissed by the Board of Revenue. The prayer was that respondents No. 1 to 4 be ejected from the land and possession be restored to the appellants. The respondents No. 1 to 4 in their written statement among other grounds contested this suit as being not maintainable and barred by the principle of resjudicata. The trial court examined the earlier decision of the Board of Revenue dated 19. 6. 1957 in a suit for ejectment filed by Bhanwarsingh defendant No. 5 against the present respondents. It was held by the learned Bench that the respondents were to prove to be the tenants of the land in dispute and were not liable to ejectment. The suit, was in the result dismissed. On the authority of this decision the trial court in the present proceedings held that the present suit was barred by the principle of res-judicata and accordingly it was dismissed with costs. In appeal, the learned Addl. Commissioner took a different view in the matter and held that the earlier judgment of the Board of Revenue did not operate as res-judicata in the present suit, which should be heard and decided on merits by the trial court. In this second appeal, the contention of the learned counsel for the defendant appellants is that the lower court did not correctly appreciate the essential ingredients of sec. 11 C. P. C. in so far as they apply to the facts of the present case and that if the plaintiff respondents and Bhanwarsingh defendant No. 5 were real brothers and held the land jointly as land-holders and if one of them namely Bhanwarsingh failed in his suit for the ejectment of the appellants, no fresh suit in respect of the same subject matter could be entertained by a court on being filed by the other two co-sharers whose title and interest in the land was common to the extent of their share in the joint holding. It was urged that if one of them had somehow failed in a suit for the ejectment of the appellants, the other two could not bring an action which was barred on the principle of res-judicata. In support of this 1938 RRD page 615 in which RRD 1936 pages 119 and 393 were approved, was relied. It was held that when different people are interested in the decision once given it is binding on others who are merely watching the result of the litigation and they cannot come forward again to rake up the whole matter. Again in 1956 Nagpur page 241, while discussing the import of explanation 6 of sec. 11 of the C. P. C. , the Division Bench held that any member of joint family can bring a suit to claim property from a trespasser for the benefit of the family as a whole. The decision in the suit is binding upon all the members who would have taken the benefit of the decision had the suit succeeded. Sec. 11 Explanation 6 is applicable to such a case. On the face of these authorities as well as a few more which we need not multiply the learned counsel for the appellants emphasised that the present suit was barred by res-judi-cata and was therefore rightly dismissed by the trial court. As against this, the learned counsel for the respondents urged that in order to attract the provisions of set. 11 Explanation 6, it was essential to find whether Bhanwarsingh had filed the earlier suit in his personal capacity or for the benefit of his other two brothers namely Gopalsingh and Balsingh respondent. It was urged that the decision of the Board of Revenue referred to above did not disclose any such unity of purpose and community of interest in that suit, and therefore whatever decision may have been given by the Board, the present suit was not barred under sec. 11 C. P. C. We have carefully looked into the decision of the Board of Revenue dated 19. 6. 57 which has caused all this controversy in the present suit. The suit was filed by Bhanwarsingh against the present appellants for their ejectment as trespassers. It was held that the appellants were the lawfully admitted tenants of the said Bhanwarsingh and therefore not liable to ejectment. Bhopalsingh and Mansingh, of course, were not made parties in these proceedings although plea of non-joinder of necessary parties namely the present defendants as co-owners, was raised in the suit by the appellant but subsequently abandoned. Nevertheless, it is clear from a perusal of para 3 of the present plaint that all the respondents including Bhanwarsingh were the land-holders with a common title and interest in the land and if in the earlier suit Bhanwarsingh had succeeded in ejecting the appellants as a trespassers, the decree would have enured to the benefit of all the three brothers. If, however, no such decree could be obtained and the suit was dismissed, then not only Bhanwarsingh but his other two brothers also, whose interest was common with each other, should suffer and no fresh suit on the same cause of action for ejectment of the appellants by the present plaintiff respondents could be maintained. It is difficult indeed, as rightly pointed out by the learned counsel for the appellants, to believe that one of the brothers namely Bhanwarsingh would have colluded with the appellants and managed to get the suit dismissed after having contested it in three courts right upto the Board of Revenue. In fact. , this is against the common course of events in litigations. It is also; not easy to accept that the present plaintiff respondents remained unaware of the litigations which proceeded the present suit. We are, therefore, satisfied that Bhanwarsingh's suit as representing the interest alongwith himself and the decision of the Board of Revenue dismissing that suit, should now operate as res-judicata barring the present suit which was filed by his other two brothers in no better capacity than as joint land holder along with Bhanwarsingh who was arraigned only as a proforma defendant.

(2.) ACCORDINGLY we allow the appeal, set aside the order of the learned Commissioner and direct that the suit shall stand dismissed. .