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2005 DIGILAW 139 (JK)

Gh. Rasool Hajam v. Ab. Razak

2005-05-18

S.N.JHA

body2005
1. This second appeal by the defendant is directed against the judgment and decree of the first appellate court, Additional District Judge, Srinagar affirming the decision of the trial court, viz. Judge Small Causes, in a suit for possession. 2. The plaintiffs-respondents filed suit for recovery of possession of land measuring three kanals and fifteen marlas of survey nos. 918/478/270-min situate at Nishat, Srinagar. The case of the plaintiffs, briefly, is that their predecessor-in-interest, namely, Muhammad Sultan Gujri purchased ten kanals and five marlas of land comprising in survey nos. 918/478/270-min under sale deeds dated 24th October, 1970, 14th December, 1970 and 30th April, 1971. He had already taken possession of the land pursuant to agreement of sale dated 23rd July, 1969. Part of the land measuring three kanals and fifteen marlas was encroached upon by the defendant and was in his illegal possession. The plaintiffs in the circumstances filed suit seeking decree of possession and eviction of the defendant from the suit land. 3. The defendant denied the case of the plaintiffs that he had made encroachment on any part of the plaintiff™s land. He stated that he had purchased five kanals and ten marlas land of survey no. 478/270- min in Khewat no. 71 at Nishat under sale deed dated 10th March, 1969. The court of Judge Small Causes had recorded finding with respect to his possession in a suit instituted by him. 4. On pleadings of the parties, the trial court framed as many as thirteen issues out of which reference may be made to issue nos. 1, 3, 5, 6 and 7 as under: 1. Whether the predecessor-in-interest of plaintiffs had acquired title to the orchard land measuring 10 kanals and 8 marlas bearing khasra nos. 918/478/270-min vide sale deeds dated 24.10.1970, 14.12.1970 and 30.4.1971, the possession whereof had already been delivered to him by virtue of an agreement to sell registered on 29.7.1969? 3. Whether the defendant illegally and unauthorizedly encroached upon 3 kanals and 13 marlas of the land out of the said orchard land without any right about which the plaintiff came to know during the course of proceedings conducted by the competent authority in terms of selection 95 of Land Revenue Act? 5. 3. Whether the defendant illegally and unauthorizedly encroached upon 3 kanals and 13 marlas of the land out of the said orchard land without any right about which the plaintiff came to know during the course of proceedings conducted by the competent authority in terms of selection 95 of Land Revenue Act? 5. Whether in order to deprive the plaintiffs from fruits of the proceedings in terms of section 95 of Land Revenue Act, the defendant filed a suit in the court of Judge Small Causes? 6. Whether the plaintiffs were held to be the owner of the suit land by the court of Judge Small Causes in a suit filed by defendant against the plaintiffs? If so, what is its effect on the suit? 7. Whether in view of the finding of the competent authority under section 95 of Land Revenue Act coupled with the findings of Judge Small Causes the possession of defendant over the disputed piece of land is devoid of any legal character and that of trespasser? 5. Later, an additional issue as issue no. 13-A was framed to the following effect: Whether the suit of the plaintiffs is hit by the provisions of section 10 and 11 of the C.P.C. and as such, the suit of the plaintiffs is not maintainable?� Issue no. 13A came to be decided as preliminary issue by order dated 31st December, 1990 in favour of the plaintiffs and against defendant. The court held that the suit was not hit by the principle of resjudicata. The other issues were decided by the main judgment dated 9th November, 1992. As regards issue no. 1, the trial court held that the land measuring ten kanals and eight marlas in survey nos. 918/478/270- min situate at Nishat, Srinagar had been purchased by the plaintiffs™ predecessor-in-interest and owned by them. Issue nos. 5, 6 and 7 were decided together. The court held that the defendant had taken possession of three kanals and ten marlas of land belonging to the plaintiffs i.e. the suit land without any right; that in the suit filed by the defendant in the court of Judge Small Causes he failed to prove ownership of the land. Relying on the finding of the Judge Small Causes the court held that his possession was devoid of any legal character. Relying on the finding of the Judge Small Causes the court held that his possession was devoid of any legal character. On these findings, inter alia, the trial court decreed the suit holding the plaintiffs entitled to recovery of possession of the suit land. On appeal by the defendant, the appellate court, viz, the Additional District Judge, Srinagar, affirmed the findings and dismissed the appeal. The defendant has come in second appeal to this Court. 6. The appeal was admitted on the following question of law: Whether under the Small Causes Act, 1968 the Judge Small Causes, Srinagar had no jurisdiction to entertain the suit; if so, whether the judgment and decree recorded by the Judge Small Causes, Srinagar and the first appellate court, confirming the said judgment and decree is invalid and non-est? The above question of law, it may be stated, was framed in the light of judgment of a learned Single Judge of this Court in case State of Jammu and Kashmir v Parvez Ahmad™, CR no.116 of 1997, decided on 13th February, 1998. It was held in that case that a Small Causes Court is not competent to entertain and decide the suit with respect to immovable property and, therefore, the decree passed by the trial court was without jurisdiction. Doubting the correctness of the decision, the appeal along with other connected appeals and civil revision involving the same point was referred to Division Bench. Vide judgment dated 2nd November, 2004 the Division Bench held that the trial court which decided the suit was basically the Court of Subordinate Judge established under the Civil Courts Act - also vested with powers of Small Causes Court in terms of the provisions of the Civil Courts Act, 1977 BK (1920 AD) as well as the Small Causes Court Act, 1968 BK (1911 AD) and, therefore, described as such, and there was no lack of competence in the court to decide the suit, and, accordingly, answered the question framed (supra). After thus answering the reference, the connected appeals/civil revision, including the present appeal, were directed to be listed for final hearing. Accordingly, this appeal came up for hearing. 7. Mr. After thus answering the reference, the connected appeals/civil revision, including the present appeal, were directed to be listed for final hearing. Accordingly, this appeal came up for hearing. 7. Mr. M. A. Qayoom, learned counsel for the appellant, submitted that the question was framed at the time of admission of the appeal in the light of the judgment in the case of State v. Parvez Ahmad (supra) and there are other questions which also arise for consideration and the appeal may, therefore, be heard on those questions. He submitted that in terms of proviso to sub-section (5) of Section 100 of the Civil Procedure Code, it is open to the High Court to hear the appeal on any other substantial question of law, not framed by it at the time of admission of the appeal. 8. Mr. R. A. Jan, learned counsel for the respondents, submitted that by order dated 2nd May , 2001 the appellant was directed to formulate questions which according to him are substantial and arise in the appeal, and pursuant to the said order, vide CMP no.217/2001, the appellant suggested five questions arising for decision out of which, after hearing counsel for the parties, only one relating to competence of the Court of Judge Small Causes was found worth consideration and, accordingly, the appeal was admitted for hearing on that question of law. It is no longer open to the appellant to urge that the appeal should be heard on any other question. He further submitted that substantial question of law is one which is not previously settled by law of the land. Where the law is settled and the question arises as to its application, the wrong application cannot give rise to a substantial question of law within the meaning of section 100 of the Civil Procedure Code. In support of his submission counsel placed reliance on Kondiba Dagadu Kadam v Savitribai Sopan Gujar, (1999) 3 SCC 722 and Santosh Hazari v Purushottam Tiwari, AIR 2001 SC 965. 9. Mr. Qayoom in reply reiterating that the question relating to competence of the trial court was raised in view of the decision of the learned Single Judge in State of Jammu and Kashmir v. Parvez Ahmad (supra), which has been over-ruled, submitted that the said issue did not pertain to merit of the case. 9. Mr. Qayoom in reply reiterating that the question relating to competence of the trial court was raised in view of the decision of the learned Single Judge in State of Jammu and Kashmir v. Parvez Ahmad (supra), which has been over-ruled, submitted that the said issue did not pertain to merit of the case. As far as the merit is concerned, the core issue was whether the suit is barred by principle of res judicata in view of the decision of not only the Revenue Officer under the Jammu and Kashmir Land Revenue Act, but also the civil court in two suits instituted by the appellant. Counsel urged that irrespective of the ultimate result, it would be in the interest of justice to hear the appeal on the question as to whether the suit is hit by principle of res judicata in view of the earlier inter-party decisions. He submitted that where the core issue is not adjudicated upon by the court below, or wrongly adjudicated, and the issue goes to the root of the case, it results in substantial question of law under section 100 of the Code of Civil Procedure. Reliance was placed on Achintya Kumar Saha v M/s. Nanee Printers, AIR 2004 SC 1591. Counsel submitted that under section 103 of the Civil Procedure Code the High Court has power in a second appeal to determine any issue necessary for disposal of an appeal, if evidence on the record is sufficient, which has not been determined by the lower appellate court or both by the court of first instance and the lower appellate court or wrongly determined by such court or courts by reason of a decision on such question of law as is referred to in section 100 of the Code. As to meaning of ˜substantial question of law™ counsel referred to a decision of the Constitution Bench of the Supreme Court in Chunilal V. Mehta v. C.S. & M. Co. As to meaning of ˜substantial question of law™ counsel referred to a decision of the Constitution Bench of the Supreme Court in Chunilal V. Mehta v. C.S. & M. Co. Ltd., AIR 1962 SC 1314, and in particular relied on the following observations therein: ¦The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.� 10. Before going into the merit of the contention raised on behalf of the appellant that the suit was hit by principle of res judicata, it may be observed that notwithstanding that the suit may ultimately be found to be not hit by principle of res judicata, the question pertains to the competence of the suit and, therefore, involves a core issue - a favourable decision thereon may tilt the balance in favour of the defendant resulting in dismissal of the suit. In the circumstances, I am inclined to consider the plea as to res judicata in terms of proviso to sub-section (5) of section 100 of the Civil Procedure Code lest non-interference on the technical ground that the question was not framed at the time of appeal in the wisdom of the learned Single Judge admitting the appeal, there may be failure of justice. In the case of Santosh Hazari v Purushottam Tiwari (supra), relied upon on behalf of the respondents, also it was held that where a decision on the question has a material bearing on the decision of the case - answered either way - insofar as rights of the parties before it are concerned, it is a substantial question of law. 11. 11. At the outset, it may be stated that it is not a case where the issue relating to resjudicata was not gone into by the courts below. Now only the trial court vide order dated 31st December , 1990, but also the first appellate court went into the question in a full-fledged manner and recorded findings in favour of the plaintiffs - negativing the contention of the defendant, But having gone through the orders/decisions in the previous proceedings/suits, I am inclined to think that the courts below did not consider the issue of res judicata in correct perspective. 12. I will first of all refer to the order of the Revenue Officer i.e. Assistant Commissioner, Srinagar dated 20th September, 1980 in a proceeding initiated at the instance of the plaintiffs-respondents under section 95 of the J&K Land Revenue Act for demarcation of ten kanals and eight marlas of land purchased by Muhammad Sultan Gujri. It appears that the application came to be filed by the respondents as land on the spot was found to be short of the area purchased by their predecessor-in-interest i.e. Muhammad Sultan Gujri. Rejecting the case of the respondents, the authority observed that section 95 of the Land Revenue Act empowers the revenue officer to decide upon illegal encroachments adjacent to the boundaries. The case, however, was not of encroachment adjacent to the boundaries. The applicant i.e. the respondents herein had purchased land without having first got it measured. Whatever was in his possession at the time of execution of the sale deed is still in his possession ¦ He should have first measured the area that he was purchasing and then executed his sale deed. He is responsible for his own commissions. There has been no encroachment on this land. The application is frivolous and vexatious and is rejected with costs�. 13. In the meantime, the defendant had filed suit on 31st December, 1977, being suit no. 158/1977, alleging the respondents had started interfering with his possession over the land measuring five kanals and tem marlas purchased by him on 10th March, 1969. The appellant filed another suit on 20th April, 1978, being suit no. 10/1978, against Srinagar Municipality, apprehending that the Municipality would demolish the structures raised by him on the land in collusion with respondents. The latter suit i.e. suit no. The appellant filed another suit on 20th April, 1978, being suit no. 10/1978, against Srinagar Municipality, apprehending that the Municipality would demolish the structures raised by him on the land in collusion with respondents. The latter suit i.e. suit no. 10/1978, came to be decided earlier in point of time on 29th March, 1985 while the former suit was decided on 7th March, 1986. The issues relevant for the purpose of the present appeal in the said suits were: Whether the suit land belongs to plaintiff and he is in possession of it? (in suit no. 158/1977). ¦ ¦ ¦ ¦ ¦ ¦ Whether the land under and appurtenant to the quarter including the quarter belongs to the plaintiff and is in his possession? (in suit no. 10/1978)�. In the first suit the issue was decided as follows: Therefore, from the statement of the plaintiff witnesses, revenue record and copy of the report of Girdawari and Naib Tehsildar, i.e. EXPd-1 and EXPd-3, it is proved that the suit land measuring 5 kanals and 10 marlas under survey no. 478/270 situate in village Nishat is in possession of the plaintiff. ¦ Hence issue no. 1 is decided to the extent in favour of the plaintiff that he is in possession of the suit land measuring 5 kanals and 10 marlas comprising of survey no. 478/270 situate at village Nishat�. In the second suit, the issue was decided in the following terms: So what is made out is that the plaintiff has purchased the suit land along with the quarter and trees standing on it and the consideration money has been paid, so the plaintiff is the owner of the suit land. ¦ So from discussion made above, I am of the opinion that plaintiff has succeeded in proving that he is the owner and is in possession of the quarter of (sic for and) land under and appurtenant to it. As such issue no. 1 is decided in favour of the plaintiff and against the defendant�. 14. It is relevant to mention here that in both the suits the subject matter of adjudication was the land of survey no. 478/270 measuring five kanals and ten marlas and, further, in both the suits the respondents herein were defendants. 15. Mr. As such issue no. 1 is decided in favour of the plaintiff and against the defendant�. 14. It is relevant to mention here that in both the suits the subject matter of adjudication was the land of survey no. 478/270 measuring five kanals and ten marlas and, further, in both the suits the respondents herein were defendants. 15. Mr. Qayoom placing heavy reliance on the aforementioned findings submitted that specific findings having been recoded in favour of the appellant on the point of possession and title in inter-party suits in civil courts and proceeding in revenue court, the instant suit for possession was hit by principle of res judicata and, therefore, not maintainable. 16. Mr. Jan did not make any submission on the factual aspects of the case on merit of the plea of res judicata. His submissions were confined to the power of the High Court to decide second appeal on a question of law not framed by it at the time of admission as indicated above - which aspect I have already dealt with above. 17. Coming to the plea of res judicata, the Assistant Commissioner, Srinagar as the competent authority under section 95 of the J&K Land Revenue Act had categorically rejected the case of the plaintiffs-respondents regarding encroachment on any part of the land purchased by their predecessor-in-interest under different sale deeds. According to Mr. Qayoom though the Revenue Officer under the Land Revenue Act is a court of limited jurisdiction, the finding recorded by him will nonetheless operate as res judicata in a subsequent suit in view of the Explanation X appended to section 11 of the Civil Procedure Code. The submission of the counsel appears to be well founded. 18. In my opinion, having regard to the finding recorded by the civil court, it may not be necessary to go into the legal effect of the finding of the Revenue Officer in context of the plea of res judicata. Suit no.158/1977 was for declaration that the plaintiff i.e. appellant herein, is owner of land measuring five kanals and ten marlas comprising survey no.478/270 in khewat no.71 situate at village Nishat, and for injunction restraining the defendants i.e. the respondents herein, from interfering with his possession over the suit land. On the basis of evidence led by the parties, the court held that the suit land was in possession of the plaintiff (appellant herein). 19. On the basis of evidence led by the parties, the court held that the suit land was in possession of the plaintiff (appellant herein). 19. It was submitted that no favourable finding on the point of ownership was recorded, and the suit was decreed only to the extent of declaration that the plaintiff is in possession of the suit land, on the premise that the plaintiff did not produce the sale deed with respect to survey no.478/270 even though the factum of purchase by the plaintiff stood proved by the documents produced by the defendants such as sale deed register and the counterfoil. The sale deed register for the relevant period and the counterfoil were proved by Brij Nath, the record keeper, examined by the defendants. The court took note of the said documents and the oral evidence but held, the plaintiff has purchased 5 kanals and 10 marlas of land from Abdul Aziz Mir comprising of survey no.278/270-min khewat no.71 situate at village Nishat and not survey no.478/270 in village Nishat�. It was on this premise, observing that suit land comprised of survey no.478/270, that the court held that the plaintiff™s contention as to his title is not tenable because title is to be specifically proved by title deed�. It was submitted that the relevant sale deed was filed in suit no.10/1978 and therefore could not be brought on record. However, finding with respect to survey no.278/270, in stead of 478/270, was recorded on the basis of copy of the sale deed produced by the defendants and the evidence of Ali Muhammad who stated to have compared the copy with the original and found it i.e. Exhibit 1/1 to be correct. 20. If something was wrong or missing in the judgment dated 7th March 1986 in suit no.158/1977, the judgment dated 29th March, 1985 in suit no.10/1978 supplied it. That was a suit for injunction against the Srinagar Municipality, and the respondents herein, for restraining the defendants from demolishing the appellant™s two storeyed house at Nishat on the land purchased by him measuring five kanals and ten marlas pertaining to survey no. 478/270 at along with house and trees standing thereon. That was a suit for injunction against the Srinagar Municipality, and the respondents herein, for restraining the defendants from demolishing the appellant™s two storeyed house at Nishat on the land purchased by him measuring five kanals and ten marlas pertaining to survey no. 478/270 at along with house and trees standing thereon. The respondents who figured as defendants 2 to 5 in the suit also filed written statement denying the appellant™s case and on the pleadings of the parties the court framed a specific issue, whether the suit land belongs to the plaintiff (appellant herein) and was in his possession? The court vide judgment dated 29th March, 1985 recorded a clear finding that the appellant was owner of the suit land and in possession of the land and house and, accordingly, decreed the suit restraining the Municipality from demolishing the house, and further restraining defendants 2 to 5 i.e. respondents herein from assisting or instigating the Municipality for such demolition. 21. The point for consideration is whether these findings would operate res judicata and bar fresh trial on the issue of ownership and/or possession between the parties? Section 11 of J&K Code of Civil Procedure, so far as relevant for purpose of this case, runs as follows: No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I. ¦. ¦ ¦ ¦ Explanation III. - The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV. - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation IV. - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. ¦ ¦ ¦ ¦ ¦ ¦ ¦ ¦ Explanation X. - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.� 22. Dissecting the provision it would appear that to constitute a matter res judicata five conditions must be satisfied: a. the matter in issue in the subsequent suit must be directly and substantially in issue in the former suit. The identity of the issue may be actual vide Explanation III or constructive vide Explanation IV; b. the suits should be between the same parties or between the parties under whom they or any of them claim; c. parties must have litigated under the same title in the former suit; d. the court deciding the former suit must be competent to try the suit; and e. the matter directly or substantially in issue in the subsequent suit must have been heard and finally decided in the former suit. 23. There can be no dispute that the suit regarding identity of the parties, their litigating under the same title and competence of the court. There is dispute regarding identify of the issue and whether the issue directly and substantially in the subsequent suit had been heard and finally decided in the former suit. We have noticed the gamut of the dispute involved in the earlier two suits and the present suit. In the first suit the appellant had specifically prayed for declaration of ownership of the suit land whereas in the second suit he prayed for injunction but therein too the issue whether he had title to the suit land was directly and substantially involved. Without favourable decision thereon he could not be held entitled to the relief of injunction against the Municipality and the private defendants i.e. the respondents herein. Without favourable decision thereon he could not be held entitled to the relief of injunction against the Municipality and the private defendants i.e. the respondents herein. Even if it is assumed for the sake of argument that it was not directly and substantially in issue, it was a matter which might and ought to have been made ground of defence or attack� and, therefore, deemed to be a matter directly and substantially in issue vide Explanation IV. Explanation IV embodies the principle of constructive res judicata. It appears from the judgment that the parties did go into the issue relating to right and title in the suit land culminating in a positive finding in favour of the appellant. I am thus satisfied that condition nos. 1 and 5 regarding identity of the issues and actual decision thereon are also satisfied. 24. As a matter of fact, in the second suit also the court™s reluctance to declare the appellant™s ownership appears to rest on a finding relating to the identity / particulars of the suit land. Whereas the suit related to land of survey no.478/270, and the evidence led by plaintiff and to some extent defendants related to that land, the court held that the plaintiff had purchased five kanals and ten marlas of land comprising survey no.278/270 and not survey no.478/270, and on that basis recorded finding on point of possession alone and to this extent only decreed the suit. In my opinion it is not necessary to make further comment collaterally on the correctness of the finding. Suffice it to observe for the purpose of this appeal that where parties join issues being fully aware of the subject matter of the dispute, and positive findings are recorded in favour of one or the other party, the party suffering adverse findings cannot escape the rigors of res judicata. 25. No less significant is the finding of the Revenue Officer under section 95 of the J&K Land Revenue Act. The proceeding was initiated at the instance of the respondents for demarcation of the land measuring ten kanals and eight marlas purchased by them, alleging that part thereof had been encroached by the appellant. The Revenue Officer recorded definite finding that there was no encroachment of land and the applicants i.e. respondents herein were in possession of the area of land of which they were in possession at the time of purchase. The Revenue Officer recorded definite finding that there was no encroachment of land and the applicants i.e. respondents herein were in possession of the area of land of which they were in possession at the time of purchase. Though a court of limited jurisdiction, the finding recorded by the Revenue Officer would operate as res judicata in view of Explanation X and the respondents cannot be held entitled to decree to recover possession of three kanals and fifteen marlas of the land involved in the present suit as if the appellant had encroached the suit land. 26. As indicated above, the plea of res judicata was considered, but rejected, both by the trial court vide order dated 31st December, 1990 and the first appellate court vide the judgment under appeal. The trial court rejected the plea in the following terms: The plaintiffs have in the present case brought before this court entirely different claim on entirely different piece of evidence. The two former suits in no way effect the merits of the present case nor will the judgment in the former suits for any purpose effect the present suit. The issues in the present suit were neither directly nor substantially in issue in any of the two former suits, the suit No.10 or suit No.15 referred to above. In those two suits the matter directly and substantially, in issue was whether the plaintiffs in those two cases (namely Khazir Hajam) was the owner and in possession of 5 kanals and 10 marlas of land purchased by him from Ab. Aziz Mir vide sale deed dated 10.3.69. While as the main issue involved in the present suit is whether Sultan Gojri had purchased the land measuring 10 kanals and 8 marlas from Ali Bhat�. 27. The first appellate court held that in suit no.10/1978 the matter in issue was apprehended demolition of the tin roofed quarter (house) standing on 5 kanals 10 marlas land while in suit no.158/1977 it was held that the plaintiff Khazir Hajam had purchased 5 kanals and 10 marlas land of survey no.278/270, and accordingly refused to declare that he was owner of land of survey no.478/270. Thus the matter in issue in the present suit was not directly and substantially in issue in the earlier suits. 28. I have already referred to the findings recorded in the previous suits and made comments. Thus the matter in issue in the present suit was not directly and substantially in issue in the earlier suits. 28. I have already referred to the findings recorded in the previous suits and made comments. Put briefly, the matter in issue was purchase of land appertaining to the same bigger plot / survey number. The appellants™ purchase was earlier. In suit no.10/1978, he was held to be owner of 5 kanals 10 marlas of land of survey no.478/270 - which is subject matter of the present suit - on the basis of the said purchase. In suit no.158/1977 his possession over 5 kanals and 10 marlas land of survey no.478/270 was declared. Curiously, the court held that he had purchased 5 kanals 10 marlas land of survey no. 278/270 - on the basis of documents produced by the defendants i.e. the respondents. The court drew adverse inference because the appellant did not produce the sale deed as it has been filed in suit no.10/1978. It is indeed curious that his possession over 5 kanals 10 marlas land of survey no.478/270 was accepted but it was held that he had purchased 5 kanals 10 marlas of survey no.278/270. I am satisfied that the matter in issue in the previous suits was the same as in the present suit and the findings therein which were in respect of the same very land i.e. 5 kanals 10 marlas of survey no.478/270 would operate as res judicata. 29. In the above premises, I hold that the respondents™ suit was barred by res judicata. That being so, the impugned decree directing recovery of possession cannot be said to be in accordance with law and must be set aside. In the result, the judgments and decree of the courts below are set-aside, the respondents™ suit is dismissed and the appeal is, accordingly, allowed. There will be no order as to costs.