NINGAYA BHARMANNA CHIKSINDGI Vs. MADIVALAVA GURAPPA MORATGI

JUDGEMENT

(1.) The question involved in this appeal is whether the suit of the plaintiff is barred by res judicata by the operation of the decree passed in suit No. 136 of 1923.

(2.) In suit No. 136 of 1923, the plaintiff sued to recover possession of the whole of the property on the ground that she had purchased it in 1907 from one Bhimappa Shiddappa for Rs. 150 and that she was the exclusive owner of the property and that her sister, the defendant had no interest therein. The defence in that case was that the mother was the owner of the property, that the mother Jivubai and the defendant were joint purchasers of survey No. 178 which was exchanged for the land in suit, and that the exchange was effected by the defendant herself and that the plaintiff had no share therein. The learned Subordinate Judge in that case held that the plaintiff's purchase of 1907 was not proved, but granted the plaintiff possession of half the share on the ground that the property belonged to the mother Jivubai, and that the plaintiff was entitled to half the share of the property. That decision was reversed in appeal on the ground that the plaintiff failed on the case made in the plaint, and could not set up any other claim which was inconsistent with it. The present suit is brought by the plaintiff on the ground that the mother Jivubai was the owner of the property, and that the plaintiff and the defendant were her heirs and in 1907 they exchanged the land for the plaint land, and therefore the plaintiff is entitled to recover half the share in the plaint land. The learned Subordinate Judge held that the plaintiff's suit is barred by the principle of res judicata. The lower appellate Court has come to a contrary conclusion.

(3.) In a case where the plea of constructive res judicata is raised, the question is not in fact heard and finally decided in the previous suit. But under Expl. 4, Section 11, if a ground of attack which ought to have been made in the previous suit has not been so made, then it is deemed that the issues which ought to have been raised was in issue between the parties, and must be considered to have been finally decided against the party who ought to have raised that issue. The question whether in such circumstances the previous decision operates as res judicata is not free from difficulty. In Kameswar Pershad V/s. Rajkumari Ruttan Koer (1892) 20 Cal. 79 one principle laid down by the Privy Council at p. 85 is as follows: that it "might" have been made a ground of attack is clear. That it "ought" to have been appears to their Lordships to depend upon the particular facts of each case Where matters are so dissimilar that their union might load to confusion, the construction of the word "ought" Would become important; in this case the matters were the same.