SRI NIWAS Vs. AZIZULLAH

JUDGEMENT

(1.) This is a defendant's appeal. Plaintiff sued for a declaration that he was proprietor of a certain grove. His claim has been decreed by both Courts.

(2.) The facts are that one Sadullah on the 25 July 1889, sold some of his property to one Lala Baburam, whose son Sri Niwas is the present defendant appellant. From that sale-deed Sadullah's share in No. 415/2 was expressly excluded. This share has descended now to the present plaintiff-respondent Azizullah, his son. It appears from the judgment of the lower appellate Court and from a copy of the decree that has been filed (there is no copy of the judgment) that Sri Niwas sued Sadullah for rent and the suit was undefended and Sri Niwas got a decree. Subsequently Sri Niwas sued in the revenue Court to eject Azizullah, Azizullah pleaded proprietary right whereupon the revenue Court referred him to a civil Court. Hence the present suit.

(3.) The first outstanding fact is that Sri Niwas did not in that suit for ejectment, in order to counteract Azizullah's plea of proprietorship, raise the plea that such a defence was barred by res judicata by the judgment obtained for rent against Azizullah's predecessor, Sadullah. In view of the later history of the case Sri Niwas may, for all the information that is now before me indicates anything to the contrary, have had no grounds really for raising such a plea. Be that as it may, he did not raise it. When Azizullah filed the present suit in the civil Court for a declaration of his title, Sri Niwas again failed to raise any plea of res judicata in his written statement, nor was any issue framed on this point. When Azizullah's suit was decreed by the trial Court, Sri Niwas did not raise any plea of res judicata in the grounds of appeal. The point appears to have been argued in the lower appellate Court which set out as one of the points for determination: Does the fact of Sri Niwas having obtained a decree for arrears of rent of the plot in dispute against Azizullah operate as res judicata to bar Azizullah's present claim?