CHUNYA Vs. BALU

JUDGEMENT

(1.) THE circumstances that give rise to this second appeal may briefly be stated thus: - -

(2.) WE have heard the counsel for the parties and have examined the record as well, The first point that comes up for determination in the case is as to whether the present suit is barred by res judicata or not. It is admitted by the parties that the Suit instituted by Balu in 1947 was between the same parties and related to the same land in dispute. As can be gathered from the judgment of the trial court dated 7.4.52, the plaintiff claimed in that case that he had been in possession of the land in dispute, that the defendants were interfering with his cultivation and hence it be declared that the plaintiff was the khatedar and pattedar tenant of the holding and the defendants had no right to interfere with his possession. The following issues were framed in that case: - -

(3.) THIS would mean that the plaintiff had failed to establish his possession as claimed in the plaint. The line of reasoning adopted by the learned Additional Commissioner in the judgment under appeal is therefore, clearly untenable. However, this by itself would not determine the question posed at the commencement of this paragraph. As laid down in sec. 11 C.P.C. no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by the court. As laid down in Explanation III, the matter above referred to must in the former suit have been alleged by one party and either expressly or impliedly by the other. The plaintiff in the previous suit had clearly alleged that he was the khatedar tenant of the land in dispute, had paid nazrana and had obtained pattedari rights and was in possession. All these allegations were denied by the defendants. Hence in spite of the fact that no specific issue was framed by the trial court on the point as to whether the plaintiff was a khatedar or a pattedar tenant or not, it will be held that the question was directly and substantially in issue in the previous suit and was decided against the plaintiff. It is, therefore, not open to the plaintiff in the present suit to agitate that question again and it must be deemed to have been determined finally between the parties that; the plaintiff is not the Khatedar and pattedar tenant The plaintiff in the previous suit claimed Khatedari and pattedari rights for himself alleging the defendants to be the trespassers in wrongful possession, This point was determined against the plaintiff. It is therefore, not open to the plaintiff to agitate that question again. He cannot be allowed to allege that the defendants are trespassers or that they have taken wrongful possession July, 1952, from the plaintiff inasmuch as it had been decided in the previous suit that the plaintiff was not in possession in 1949 and the plaintiff never alleged in the present suit that he ever acquired possession after termination of the previous suit including the first appeal as well. We are, therefore, clearly of the opinion that the present suit is barred by res judicata. We would, therefore, allow this appeal, set aside the order of the lower appellate court and restore that of the trial court whereby the plaintiffs suit was dismissed.