JHUMA RAM Vs. PRAMI BAI

JUDGEMENT

(1.) THIS is a special appeal under Section 18 of the Raiasthan High Court ordinance. 1949 directed against the judgment of a learned Single Judge dated 12-4-1967 whereby he dismissed the plaintiff-appellant's appeal.

(2.) IN order to appreciate the nature and the scope of the controversy it will be necessary to recall the various stages of the litigation between the parties. Mool chand and Jhuma Ram two brothers migrated from Pakistan to India and settled in 10 G Chhoti Tehsil Ganganagar in 1947. The family was allotted 37 1/2 bishas of agricultural land in the name of Mool Chand, who was the Karta of the joint Hindu familv. Mool Chand died on 19-10-1952. Laxmi Bai widow of Mool Chand applied under Section 9 of Displaced Persons (Compensation and Rehabilitation)Act, 1954, (hereinafter called 'the Act') for the partition of the land allotted to Mool chand. Jhuma Ram resisted this application on the ground that the property was ioint Hindu family property allotted to the family in satisfaction of the assets left by them in Pakistan, Jhu-maram's contention was repelled by the Settlement Officer, ganganagar by his order dated 7th Jan. , 1958. whereby he divided the land in two eaual shares, one share whereof was given to Laxmi Bai and the other to Jhuma ram. Being dissatisfied Jhuma Ram preferred an appeal before the Assistant Settlement commissioner, Raiasthan. who promptly dismissed the appeal on 8th March, 1958 jhuma Ram then went up in revision before the Deputy Chief Settlement commissioner. New Delhi. This re-vision was allowed to the extent that the land be allotted on the basis of the claims held by the parties and the order of partition by the Deputy Chief Settlement Commissioner (sic) was upheld. Jhuma Ram was still aggrieved by the order of the Deputy Chief Settlement Commissioner and challenged it by way of a writ petition under Article 226 of the Constitution of India in the Punjab High Court, and Mahaian J. by his judgment dated May 17. 1961 dismissed the said petition. Dissatisfied Jhumaram Preferred Letters Patent Appeal before a Division Bench of the Punjab High Court, which was also dismissed on 6th december, 1961. Jhumaram thereafter instituted a suit before the Munsiff, Ganganasar on 3rd march. 1962 praying for a declaration that he was the sole and exclusive owner of the agricultural land measuring 37 1/2 bighas of land situated in 10 G Chhoti tehsil Ganganagar and that the defendants be restrained from interfering with his possession. This suit was resisted by smt. Laxmi Bai, inter alia on the ground that the Civil Court had no Jurisdiction to entertain the Suit. Out of the four issues framed, issue No. 3 was 'whether the suit was not cognizable by a Civil Court?' By his judgment dated 15-11-1962 the learned Munsiff dismissed the suit deciding this issue in favour of the defendant. An appeal was taken to the Senior Civil judge, Ganganagar. but Jhuma Ram failed again when the same was dismissed on 14-5-63. Jhumaram came to the High Court in second appeal and the learned single Judge by his judgment dated 12-4-1967 also dismissed the appeal on the ground that the Division Bench judgment of the Punjab High Court has concluded the controversy and the suit instituted by Jhumaram was barred by the doctrine of res iudicata. Jhumaram's tenacity remains unabated and he has come up in special appeal.

(3.) MR. H. C. Jain learned counsel for the appellant argued the judgment of the punjab High Court dated 6th December. 1961', could not operate as res iudicata against the appellant, for the Punjab High Court had not decided any Question finally. In the alternative he submitted that assuming, they had decided such a question then the respondent be deemed to have waived her right to raise the ground of res iudicata because the same was not pleaded in the written statement before the trial court and the first and the second appellate Court. He placed reliance on Suravya v. Gangadhara Ramakrishna Reddi, AIR 1948 PC 3.