NAND KISHORE Vs. GANESH LAL

JUDGEMENT

(1.) THIS is a second appeal by an unsuccessful plaintiff against an appellate judgment and decree dated 30th Nov. , 1959 passed by the Commissioner Kota, upholding the judgment and decree of the Assistant Collector Bundi, whereby he dismissed the suit of the appellant for a share on the basis of inheritance in the disputed land as being res-judicata because of a similar suit for partition having been brought by the appellant having been already decided against him. The only point urged before us on behalf of the appellant is that the title under which the appellant had brought the present suit was quite different from the one under which he had brought and lost the previous suit of partition. The contention is that the previous suit had been brought by him as being entitled to l/3rd share of the disputed land under his title of being the grandson of deceased Ram Chandra whereas the present suit had been brought on the basis of his title to succeed to the l/3rd share on the death of Hemnath a son of Ramchandra per stir-peas alongwith the other nepnews of the deceased Hemnath. The genealogical tree given below would explain the position and relationship of the parties: - Ram Chandra Modulal (Deceased) Ragunath (died issueless) Chaturbhuj Ramnath Hemnath died (issueless) Nand Kishore Lahri Lal Chandanlal Kishanlal Ganeshlal Ramsukh

(2.) IT is an admitted position between the parties that Hemnath had already died when the previous suit of partition was brought. IT is also an admitted position between the parties that the previous suit was dismissed on the finding by the civil court, to which the matter had been referred as involving a propriety right, that the disputed land was not the ancestral property. IT was found to have been purchased by Raghunath in an auction. The present suit had been based on the title of the appellant as heir to deceased Hemnath, who has been alleged to have succeeded to the disputed property after the death of Raghunath issueless. The learned lower courts have held the suit to be barred by the principles of constructive res-judicata under the terms of explanation IV to sec. 11 of the C. P. C. relying on the authority 1959 R. L. W. 367. IT has been laid down by the Rajasthan High Court in that case that even though it was not possible to lay down affirmatively any definite rules on the point where the evidence to be produced in support of a particular ground was not destructive of the evidence to be produced for other ground, that could be taken to support or defend a case, both of such grounds should be taken by a party and if he failed to take up any such ground he could not escape the penalty provided under sec. 11 C. P. C. i. e. , res-judicata. The expression "might" and "ought" implied in Explanation IV to this section have been interpreted to cover " the possibility of joining all grounds of attack of defence together, "and" the reasonableness or propriety of so joining them respectively. IT has been further laid down that the Explanation meant that all grounds of attack and defence must be taken even if they could only be taken up in alternative except in cases, whin it would be 'inexpedient' for a party to di so. The application of the principles of constructive res-judicata to the present suit has to be determined keeping in view this very authority. IT has been clearly laid down therein that all the grounds of attack and defence have to be taken necessarily by a party, even by way of alternative pleas, except when it would be "inexpedient" for him to do so. IT needs no logic to show that it would have been quite 'inexpedient' for the appellant to plead in the previous suit that in the alternative he be allowed to succeed to only 2/9th of the share falling to deceased Hemnath as he is doing in the present case. He had claimed 1/3rd of the share in the disputed land in that suit on the strength of his title of being heir to Ramchandra his grand-father and father of deceased Hem Nath. This would have caused an unnecessary loss to him if he could prove his title of inheritance to Ramchandra and succeeded to have this suit property artitioned on that basis. IT could be argued that this inexpediency could mean only an arising of a situation of confusion because of the union of the matters so dissimilar from each other and no more; and that as the appellant's case stood, there could not arise any such confusion if he had claimed 2/9th share of the disputed property only as an alternative measure. But the principle of constructive res judicata enunciated in explanation IV to sec. 11 C. P. C. was not an entirely independent provision but was subject to the provisions of the main section which required amongst other things mat the parties should be "litigating under the same title". This is a very important ingredient of the section to make the principle of res-judicata applicable and bar any person from bringing a suit only on the most commonsense principle that no person snail be vexed twice for the same cause. Unless the title under which the appellant came to the Court was the same in both suits, this principle as such could not apply. Obviously in the previous suit the appellant had come forward with the allegation that the subject matter of the suit was an ancestral property. In the present case he has come forward that he is entitled to be heir to Hemnath deceased. The disputed land has been already found by a competent court in the previous suit not to be an ancestral property. The title under which the appellant brought the previous suit therefore is not only distinguishable from the present one but has already ended with the disposal of the previous suit. This cannot bar the institution of the present suit by him on the title of inheritance to which he deems himself to be entitled on the death of Hemnath, one of his uncles. There could not also be any occasion in the previous suit to make this also ground of attack. In brief, the learned lower court have tailed to appreciate this distinction and have acted erroneously in holding this suit to be barred by res-judicata.