SHRIMATI RASAL Vs. SHEOBUX

JUDGEMENT

(1.) THIS is an appeal against an appellate decision of the Additional Commissioner, Jaipur, dated 17-5-1955 reversing the decision of the trial court and holding the appellant's suit to be barred by the general principles of res judicata.

(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The validity of the lower appellate court's Judgment has been challenged before us only on two grounds, the first is that the parties in the present suit are different from those in the previous proceedings under the Rajasthan (Protection of Tenants) Ordinance. The other is that the point which is directly and substantially in issue in the present suit is entirely different from the previous proceedings. WE have carefully examined both these contentions and feel no hesitation in observing that there is no substance in either of them. As for the first it may be observed that the application for reinstatement under sec. 7 of the Ordinance was presented by Sheobux against Kesar Devi, Rasal Devi and others. The present suit was instituted by Kesar Devi, in her own right and as guardian for her minor son Nand Singh. The appellant's contention is that Nand Singh was not party in the previous proceedings under the Ordinance and hence the principles of res judicata should not be held applicable. It has been replied on behalf of the opposite party that Nand Singh was effectively and properly represented by her mother Kesar Devi in the R. P. T. O. proceedings and hence the parties are the same. On behalf of the appellant reliance is placed on A. I. R. 1922 Allahabad 217. This case is clearly distinguishable from the present one. In that case the de facto guardian of a minor entered into a compromise by which substantial rights of the minor were given up to the plaintiffs, who the guardian should have known had no manner of right thereto. It was held that the inference that the compromise was obtained improperly was almost irresistible. There is no suggestion in the present case that Kesar Devi did not properly contest the R. P. T. O. case or acted collusively or fraudulently. As can be gathered from the judgment of that case, it was a hotly contested one. A. I. R. 1947 Allahabad 168 and A. I. R. 1929 Patna 741 have been cited on behalf of the respondent. In the Patna case it was laid down that it was not necessary that the managing member must be mentioned as a party in that capacity expressly, "all that is required is to see whether he effectively represents the family having regard to all the circumstances of the case. " In the Allahabad case it was observed (hat a decree passed against the father or a manager of a Hindu family unless it is vitiated by fraud or unless the son establishes that his interest were not properly safeguarded must be held to be res judicata against the other members of the family. As observed above, in the R. P. T. O. case Mst. Kesar Devi was clearly impleaded as the opposite party and the allegations against her were that she had obtained the wrongfull possession over the land after dispossession Sheobux. Kesar Devi resisted this claim. There is absolutely nothing on the record to show that she did not take adequate steps to safeguard the interest of the minor or that she had any interests adverse to those of the minor. Thus it is clear to our minds that Nand Singh minor was effectively represented through her mother in the R. P. T. O. case.