SHIB SINGH Vs. MTGAURA

JUDGEMENT

(1.) This is a defendant's appeal. The plaintiff respondent Mt. Gaura, filed a suit for profits under Section 226, U.P. Tenancy Act, against Shib Singh appellant in the revenue Court. Shib Singh in defence alleged that Bihari, husband of Mt. Gaura, was joint with Shib Singh's father, Durga, at the time of Bihari's death and therefore the rights of Behari in the joint family property came by survivorship to the defendant Shib Singh and Mt. Gaura had no right to claim a share of the profits. This plea raised in defence having involved a question as regards proprietary title, the revenue Court, under Section 286 of the Act, framed an issue on the question and submitted the record to the Court of the learned Munsif for determination, The learned Munsif held that the family was separate and on return of the finding the Assistant Collector decreed the suit. Against that decision Shib Singh filed an appeal in the Court of the learned District Judge of Shahjahanpur. The learned District Judge did not go into the question whether Behari and Durga were joint or separate and instead of deciding the case on merits he decided the case on a plea of res judicata which was not raised by either party, but which he says he found from the file to be a very clear plea which barred the defence. He, therefore, dismissed the appeal except that he modified it with reference to village expenses to a certain extent. It is against that decision that Shib Singh has filed this second appeal in this Court.

(2.) In the year 1935, Mt. Gaura filed a suit No. 27 of 1935, in the revenue Court for realization of her share of the profits for the years 1339, 1340 and 1341 Fasli. Shib Singh was at that time involved in a criminal case in which he had been sentenced to death. Be that as it may, no defence was put in on behalf of Shib Singh and the suit of Mt. Gaura was decreed ex parte. In the year 1939 Mt. Gaura filed another suit for profits for the year 1345F, but for some reason that suit did not proceed to trial and it was dismissed for default on 5 December 1939, though in the presence of the defendant. This was the third suit that Mt. Gaura filed for her share of the profits for the years 1346 and 1347F. The learned District Judge was of opinion that the ex parte decree in suit No. 27 of 1935 barred the defence of Shib Singh that Mt. Gaura was not entitled to a share of the profits and, he therefore, did not allow the plea of Shib Singh that Mt. Gaura's husband Behari was not separate from Durga to be raised before him.

(3.) The learned Counsel for the appellant urges that plea of res judicata not having been raised in the trial Court, the lower appellate Court could not allow that plea to be raised, and in fact in this case no party having raised that plea it was not open to the learned Judge to take up the plea of res judicata for himself and decide the case on that ground. He relies on the case in Jagdish Chandra V/s. Gour Hari Mahato for the proposition that a party is not entitled to raise a plea of res judicata when the said plea has not been raised in the pleadings and particularly in the issues, and he urges that their Lordships of the Judicial Committee meant to lay down that in no case should a plea of res judicata be entertained by an appellate Court where the plea had not been raised in the written statement and had not been the subject-matter of issues in the case. His argument is that res judicata is a plea in bar, which a party may waive, and if a party has not taken the plea in the written statement it must be deemed, as a matter of law, that he has waived the same. Before this decision of the Privy Council, the law in this Court was very clear that a plea of res judicata could be raised at any stage. In Muhammad Ismail V/s. Chattar Singh ( 81) 4 ALL. 69 a Full Bench of this Court held in second appeal that where a plea of res judicata had not been urged in either of the two lower Courts or in the memorandum of appeal and was raised for the first time in second appeal, it must be considered and determined either upon the record as it stood or after a remand of findings of fact.