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2003 DIGILAW 342 (RAJ)

Durga Lal v. Kailash Narain

2003-03-03

S.C.SINGHAL, SUDHIR VERMA

body2003
SINGHAL, Member – The appellant-plaintiff has filed this appeal under Section 224 of the Rajasthan Tenancy Act, 1955, (in short ``the Act), against the judgment and decree dated 11.6.2001 passed by Revenue Appellate Authority, Jaipur in appeal No. 19/99, by which his appeal was dismissed. (2). In short, the facts of the case are that the appellant-plaintiff filed a suit in the Court of Asstt. Collector, Jaipur under Sections 88, 53 and 188 of the Act alleging that Araji Khasra Nos. 359, 463 and 464 situated in village Kanota Tehsil Bassi belonging to their common ancestor Narain and he was recorded as Khatedar tenant of the disputed land. In the year 1978, a suit was filed in the Court of Asstt. Collector, Jaipur for division of holding between the parties which was decreed on 26.6.78 and the final decree was passed on 17.10.99. It was a consent decree and according to this decree the disputed land divided between the parties in following manner :- (3). It has been further alleged in the plaint that Tehsildar, Bassi has made reference to Addl. Collector, Jaipur on the ground that the disputed land of Khasra No. 463 and 464 are in the khatedari of Temple Murli Manoharji, therefore, this land has wrongly been divided between the parties, i.e., appellant and respondents. Therefore, the name of Temple Murli Manoharji be entered in the revenue record in place of appellant and respondents. Therefore, he got every apprehension that the disputed land of khasra No. 464 and 463 may go in the name of temple Murli Manoharji and now araji khasra No. 459 area 1 bigha 1 biswa remains the disputed land which is ancestral one; hence a prayer has been made that this disputed land of khasra No. 459 may be divided between appellant and respondents equally and the remaining land of khasra No. 463 and 464 be entered in the name of temple Murli Manoharji. The trial Court, vide its judgment dated 21.8.99, dismissed the suit of the appellant-plaintiff on the ground that the present suit filed by the appellant-plaintiff operates as res-judicata. Aggrieved by this, the appellant filed an appeal under Section 223 of the Act in the first appellate Court which has been dismissed, now this second appeal. (4). The trial Court, vide its judgment dated 21.8.99, dismissed the suit of the appellant-plaintiff on the ground that the present suit filed by the appellant-plaintiff operates as res-judicata. Aggrieved by this, the appellant filed an appeal under Section 223 of the Act in the first appellate Court which has been dismissed, now this second appeal. (4). The learned counsel of the appellant has contended that both the Courts below have erred in coming to the conclusion that the previous decree operates as res-judicata, therefore, the second suit is barred by Section 11 CPC. In this connection he has referred Juwari Lal vs. Jamna Lal (1). On the other side, learned counsel of the respondents had supported the judgment passed by the Courts below. (5). We have considered the contentions of both the parties and also have gone through the record. (6). It is not disputed that the previous suit between the parties has resulted in a consent decree. No objection was raised by the opposite side that the subsequent suit operated as res- judicata and no issue in this regard has been framed by the trial Court. In AIR 1967 SC 591 (2) (Head Note `B) it was held that a compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. A compromise decree merely puts the seal of the Court on the agreement of the parties; the Court does not decide anything. Nor it can be said that the decision of the Court was implicit in it. Such a decision cannot operate as res-judicata though it might create an estoppel by conduct between the parties but such an estoppel must be specifically pleaded. In AIR 1970 SC 406 (3), it has been observed that a consent decree does not operate as res- judicata because a consent decree is merely record of a contract between the parties to which seal of the Court is affixed and it does not operate as res judicata. In 1989 RRD 332 it has been held that a consent decree does not operate as res-judicata though it might create an estoppel by conduct between the parties, but such estoppel must be specifically pleaded where in a subsequent suit plea of estoppel was not taken, decree in such subsequent suit will prevail over the consent decree. (7). In 1989 RRD 332 it has been held that a consent decree does not operate as res-judicata though it might create an estoppel by conduct between the parties, but such estoppel must be specifically pleaded where in a subsequent suit plea of estoppel was not taken, decree in such subsequent suit will prevail over the consent decree. (7). After carefully going through the various authorities cited as the Bar we hold that the consent decree will not operate as res-judicata. We, therefore, hold that both the Courts below were wrong in holding that subsequent suit filed by the appellant is barred by principle of res-judicata. (8). In view of the above discussion, the appeal succeeds and the judgment and decree passed by Revenue Appellate Authority, Jaipur dated 11.6.2001 and Asstt, Collector, Jaipur dated 21.8.99 are set-aside. The case is remanded to Asstt. Collector, Jaipur for deciding it afresh in the light of the observations made above in accordance with law. (9). The parties are directed to appear before the Asstt. Collector, Jaipur on 7.4.2003. (10). Pronounced in the open Court.