KOODI Vs. BABOO

JUDGEMENT

(1.) THIS is a second appeal by the plaintiff Koodi against the judgment and decree of the District Judge Alwar dated 15-4-1953, in a suit for possession.

(2.) THE following pedigree table will be found helpful in understanding the facts of the case out of which this appeal arises: *******

(3.) BEFORE concluding this judgment, I should like to refer to Abdullah Ashgar Ali Khan v. Ganesh Dass, AIR 1917 PC 201 on which learned counsel for the plaintiff strongly relies for his submission that the point involved in the earlier litigation as to whether the suit property was the exclusive property of defendant Hukmi, or it was the joint and ancestral property of all the three brothers was not "finally decided" within the meaning of Section 11 of the Code of Civil Procedure. The case was decided on Section 10 of the British Baluchistan Regulation IX of 1896, but that does not matter inasmuch as the wording of Section 11 of the Code of Civil Procedure is substantially the same. In that case. A and B were partners. The partnership was then dissolved and a deed of dissolution was drawn up between the parties. Thereafter A executed a bond in favour of B for the amount found due by A. A then sued for the cancellation of this bond on the allegation that B had obtained the same from him by fraud. The contention of B was that a suit for the cancellation of the bond only would not lie as the bond was based on the dissolution deed, and that no suit had been brought for the cancellation of the deed of dissolution. The trial court dismissed the suit, as, in its opinion, the fraud alleged by A had not been proved. . The court of first appeal upheld this decision. On second appeal, however, the learned Judicial Commissioner held that the objection of B to the frame of the suit was well-founded, and therefore, without entering into the merits of the case, he dismissed A's appeal and the suit was dismissed. Thereafter, B sued on the bond, and again A contended that it was vitiated by fraud. It was held upto the High Court that the defence was barred by res judicata. On appeal to the Privy Council, this decision was set aside and their Lordships, relying on Sheosagar Singh v. Sitaram Singh, ILR 24 Cal 616 (PC), held that as the second appellate court had decided the earlier case on the ground of the defective frame of the suit and the decision of the courts below on the issue of fraud had not been pronounced upon by it, it could not be said that that case was decided on the merits. In coming to the conclusion to which they did, their Lordships relied on an earlier decision of the Privy Council in ILR 24 Cal 616 (PC ). The relevant observations in the last mentioned case were these. " To support a plea of res judicata it is not enough that the parties are the same and that the same matter is in issue. The matter must have been "heard and finally decided. " If there had been no appeal in the first suit the decision of the Subordinate Judge would no doubt have given rise to the plea. But the appeal destroyed the finality of the decision. The judgment of the lower Court was superseded by the judgment of the Court of Appeal. And the only thing finally decided by the Court of Appeal was that in a suit, constituted as the suit of 1885 was, no decision ought to have been pronounced on the merits. " I have carefully considered these two decisions and I am of opinion that they are entirely distinguishable on facts. In either of them, it could not be said that the judgment upon which the plea was res judicata was heard turned on the merits of the case,, and no pronouncement on the merits had in fact been made because of some formal defect or the other. The present case is entirely different. As already pointed out above, it is incontrovertible that the decision as respects Heera in the earlier suit, even though it was founded on the special oath offered by him and accepted by the contesting respondent Roshan, was given on the merits, because according to Section 11 of the Oaths Act, the evidence thus given on oath by Roshan, was conclusive proof of the matter in issue between the parties. The decision did not turn on any formal matter, and was therefore given on the merits. The only question which then remains to be considered is whether the decision so given on the merits, can be held to be binding on the present plaintiff Koodi, who was also respondent in that case. The short answer to that question, in my opinion, is that there was a necessary conflict between the co-defendants in that case, namely Roshan and Koodi, and, therefore, all the requisites for the application of the rule of res judicata to which reference has already been made above, were fully satisfied.