DWARKA DAS Vs. AKHAY SINGH

JUDGEMENT

(1.) The facts which have given rise to this appeal are as follows: The plaintiffs brought a suit for their share, amounting to Rs. 151-8-0, in an annuity which was a charge on a 7 1/2 biswa share in the village An walkhera for the years 1309, 1310 and 1311 Fasli. The defendants resisted the claim on various grounds. The learned Munsif dismissed the suit. He held that the judgment of this Court, dated the 14 August 1905, did not operate as res judicata, inasmuch as the subject-matter in issue in the case in which that judgment was pronounced was not the same as in the present case. He remarks: "I do not think (that) that judgment can operate as res judicata, the subject-matter being different, viz. for a different year's charge.

(2.) The plaintiffs appealed to the District Judge. Their fifth ground of appeal was that "the question of the liability of the defendant No. 1 to pay the plaintiffs is res judicata." 2. The learned District Judge dismissed the appeal on the ground that the defendant No. 1 was not liable to pay the annuity to the plaintiffs, without deciding the plea of res judicata. I may mention here that the former suit was instituted in the Revenue Court, and that no objection was taken that the suit was instituted in the wrong Court. The learned District Judge under the provisions of Section 206 of the North-Western Provinces Rent Act (Act No. XII of 1881) disposed of the appeal as if the suit had been instituted in the right Court. He remarked: It is a mere quibble to say that (the) defendant admitted it as a share of revenue and not as a share of an annuity. The fact remains that Raja Govind Singh admitted his liability to pay it and offered to pay it. Now that the case has come to this Court, it is immaterial whether the suit was originally instituted in the Civil Court or the Revenue Court. The only objection that Raja Govind Singh's pleader can now raise as to paying it is that if the suit was brought in the Civil Court for the money as an annuity, his client might be able to raise some defence. But the facts have been before him for a long time, and if there is any reason why he should not pay the money, he should be able to state it in this Court. On the state of things at present disclosed the appellants are clearly entitled to receive the money.

(3.) The plaintiffs have preferred a second appeal to this Court. It is contended on their behalf that the question of the liability of the defendant No. 1 to pay Rs. 151- 8-0 to the plaintiff is res judicata by reason of the judgment of the High Court between the same parties, dated the 14 August 1905, in Second Appeal No. 872 of 1903; and that the fact that the claim in the former litigation was for a different set of years cannot prevent the operation of res judicata, for the title under which the plaintiffs claimed the share of the annuity, whether for one set of years or another, was one and the same title in both cases.