BASANT DEO Vs. KESHAL DEO

JUDGEMENT

(1.) THIS was a suit for ejectment of the defendants from a house on the allegation that the plaintiff was the sole owner of the house and that the defendants had been living therein as his licensees. The pleas in defence were that the house was ancestral that they were living in it as joint owners and that the sale deed dated 4 October 1885 executed by Moti Ram in favour of the plaintiff was fictitious. The learned Munsif dismissed the suit and his decree was affirmed by the lower appellate Court. The only point for determination before the lower appellate Court as appears from its judgment was whether the plaintiff was or was not the sole owner of the house. That Court came to the conclusion that the house in dispute was jointly owned and possessed by the parties. The plaintiff has preferred a second appeal to this Court and two points have been argued by his learned vakil. The first is that the judgment of the District Judge dated the 6 June 1905 in miscellaneous case No. 38 of 1905 under the Land Acquisition Act operates as res judicata. The second is that the Court below should have come to a finding on the question that the sale-deed dated the 4 October 1885 was executed in consideration of an antecedent debt and was, therefore, binding upon the defendants. In support of the first contention reliance is placed upon Ram Chunder Singh V/s. Madho Kumari 12 C. 484 : 12 I.A. 188 and Chandi Prasad V/s. Maharaja Mahendra Mahendra Singh 24 A. 112. The case reported in Ram Chander Singh v. Madho Kumari 12 C. 484 : 12 I.A. 188 does not govern the present case because as has been remarked by Maclean, C.J. in Dirgaj Deo V/s. Kali Charan Singh 34 C. 466 at p. 469 the previous decision which was pleaded as res judicata was not pronounced in proceedings under the Land Acquisition Act but in an independent suit to obtain Rs. 15,125 odd which had been deposited in the Government Treasury. The learned Judges who decided Mahadevi V/s. Neelamani 20 M. 269 at p. 272 remarked The next finding of the Judge is that the question of title in regard to the plaint property is res judicata by reason of the decision under Section 39 of the Land Acquisition Act of 1870. Assuming that the appellants were made parties to the proceedings under that section though the question is doubtful owing to the faulty character of the notice (Ex. 111) served on the first appellant we do not think that the finding in the land acquisition case in favour of the validity of the plaintiff operates as res judicata in this case inasmuch as the litigation under that Act is a special form of proceeding confined to the determination of the amount of compensation due and the persons to whom it should be paid. Such a proceeding cannot be treated as a suit within the meaning of Section 13 of the Code of Civil Procedure so as to render a decision come to therein binding when the same question arises in what is strictly a suit. Further for the reasons stated by Pontifex, J. in Nobodeep Chunder Chowdhry V/s. Brojendrolall Roy 7 C. 406 : 9 C.L.R. 117 we should not be justified in holding on even general grounds that an adjudication under the Land Acquisition Act should be held to be conclusive in disputes connected with property other than that to which the enquiry under that Act related. I fully agree with the above remarks and hold that a decision in a proceeding under the Land Acquisition Act cannot be treated as a decision in a former suit so as to operate as res judicata with reference to the property other than that to which the enquiry under that Act related, On the basis of Chandi Prasad V/s. Maharaja Mahendra Mahendra Singh 24 A. 112 it is, however, contended that the decision with reference to a portion of land claimed under the same title will operate as res judicata and will bind the defendants in the present suit. In the case of Chandi Prasad 24 A. 112 the previous decision was in a suit and not in proceedings under the Land Acquisition Act and on this ground the present case is distinguishable from the case of Chandi Prasad 24 A. 112.

(2.) THE second plea, in my opinion, has no force. THE question that the sale-deed was executed in consideration of an antecedent debt was not alleged in the plaint nor was it set forth in the memorandum of appeal to the lower appellate Court. I cannot allow it to be taken in the second appeal before me. THE result is that I dismiss the appeal with costs.