Research › Search › Judgment

Rajasthan High Court · body

2005 DIGILAW 1885 (RAJ)

Ram Swaroop v. Board of Revenue, Ajmer

2005-07-22

DINESH MAHESHWARI

body2005
Honble MAHESHWARI, J.–A revenue suit for declaration and division of holdings under Sections 88 and 53 of the Rajasthan Tenancy Act filed by the petitioner-plaintiff Ram Swaroop being Suit No. 57/1978 for different parcels of land situated in Chak 7 Deeplana, Chak 6 Deeplana and Chak 2 Deeplana was decreed by the Assistant Collector, Nohar on 2.2.1981 holding the plaintiff-Ram Swaroop to be entitled for 1/3rd share in the land in question. Appeal No. 24/1981 taken by the defendants Chandu Ram son of Malla and Bhoop Singh son of Chandu Ram was partly allowed by the Revenue Appellate Authority, Bikaner camp Sri Ganganagar on 12.9.1983 holding that so far the suit regarding the land of Chak 2 and 6 Deeplana was concerned, the same was barred by the principles of res judicata and the decree in respect of the land of Chak 7 Deeplana was maintained. Second Appeal No. 324/83/LR/Ganganagar taken by the plaintiff Ram Swaroop to the Board of Revenue for Rajasthan, Ajmer was dismissed by the Division Bench of the Board of Revenue on 29.7.1991 affirming the judgment and decree passed by the Revenue Appellate Authority. Being aggrieved by the judgment and decree passed by the Board of Revenue dated 29.7.1991 affirming the judgment and decree passed by the Revenue Appellate Authority. Being aggrieved by the judgment and decree passed by the Board of Revenue dated 29.7.1991, the plaintiff-Ram Swaroop has submitted this writ petition. (2). The only ground on which the Revenue Appellate Authority has dismissed the suit in respect of the land of Chak 2 Deeplana and 6 Deeplana and the Board of Revenue has affirmed such dismissal, is that suit for declaration and division of holdings in respect of these lands was barred by the principles of res judicata for the issue having been heard and finally decided in a former suit No. 59/1963 :Moman vs. Malla & Ors., decided on 6.12.1965, by the Assistant Collector, Nohar and its appeal was dismissed by the Revenue Appellate Authority on 18.4.1968 and the dismissal was ultimately affirmed by the Revenue Board on 31.5.1972. In the present writ petition also, the petitioner has raised the only question that the present suit filed by the plaintiff-petitioner was not barred by res-judicata because as regard the plaintiff, the issue was not heard and finally decided in the former suit. In the present writ petition also, the petitioner has raised the only question that the present suit filed by the plaintiff-petitioner was not barred by res-judicata because as regard the plaintiff, the issue was not heard and finally decided in the former suit. That being the only question involved, brief facts relevant thereto are summarized hereunder. (3). The plaintiff Ram Swaroop son of Sampat filed the present suit for declaration and division of holdings on 14.3.1978 arraying Chandu Ram son of Malla Bhoop Singh son of Chandu Ram as defendants Nos. 1 and 2; Gordhan, Ramdhan, Kashi Ram, Kheta Ram, Bhadar Singh and Mansukh sons of Jagram as defendants Nos. 3 to 8; Moman son of Mukhram as defendant No. 9; and the State of Rajasthan through the Tehsildar, Bhadra as defendant No. 10. The plaintiff gave out details of the land in question in the suit comprised in different chak numbers and murraba numbers. Suffice is to notice for identification of the land that the suit was filed in respect of three different parcels of land, namely, (i) 63 bighas in Chak 7 Deeplana; (ii) 78 bighas in Chak 6 Deeplana; and (iii) 77 bighas in Chak 2 Deeplana, (for the sake of brevity hereinafter referred as to the land of `7 DPN, 6 DPN and 2 DPN respectively). In respect of this total land of 218bighas, the plaintiff averred that this land was joint holding of (1) plaintiff, (2) Malla, father of defendants No. (1) and (3) Moman- defendant No. 9, each one of them having 1/3rd share in the same. Malla had expired and defendant No. 1 was his sole heir. It was alleged that out of the said land, Malla sold different pieces of land to defendants Nos. 3 to 8 in all measuring 31 bighas which were in their cultivatory possession. It was alleged that in the current Jamabandi of 2029 to 2038, defendants Nos. 1 and 2 illegally get entered the land of Chak 6DPN in the name of defendants Nos. 1 and 2, of Chak 2 DPN in the name of defendant No. 1 and his father Malla and 31 bighas in the name of defendants Nos. 3 to 8 and this was asserted to be the cause of action for filing the suit. It was alleged that on the basis of erroneous entries in Jamabandi, defendants Nos. 1 and 2, of Chak 2 DPN in the name of defendant No. 1 and his father Malla and 31 bighas in the name of defendants Nos. 3 to 8 and this was asserted to be the cause of action for filing the suit. It was alleged that on the basis of erroneous entries in Jamabandi, defendants Nos. 1 and 2 were maintaining forcible possession on the land of Chak 2 and 6 DPN and were threatening to alienate the land which would cause irreparable injury to the plaintiff. The plaintiff submitted that he was entitled to get a declaration that in the land in question, himself, defendant No. 1 and defendant No. 9 were having 1/3rd share each. The defendants have refused to get the Jamabandi corrected and to divide the holdings, hence the suit was filed for declaration of 1/3rd share each as aforesaid of the three persons and for division of holdings in accordance with respective share and entitlement. (4). The defendants Nos. 1 and 2, Chandu Ram and Bhoop Singh, contested the suit so far the land of Chak 2 and 6 DPN was concerned and submitted that this land was the self acquired property of Malla (father of Chandu Ram) who had received the same after it was surrendered by one Sahi Ram for non-payment of the rent and the land was obtained by Malla by making payment of the remaining amount to the then Jagirdar and he became the exclusive khatedar tenant of the land in question comprised in these Chaks 2 DPN and 6 DPN. Malla has given 42 bighas of land to Bhoop Singh and the remaining land was in possession of the only son of Malla namely, Chandu Ram. So far the land of Chak 7 DPN was concerned, it was admitted that this land was ancestral joint holding of Malla, Sampat (father of the plaintiff) and Moman and after the demise of Sampat, the plaintiff was having 1/3rd share and after the demise of Malla, defendant No. 1 was having 1/3rd share and remaining 1/3rd was of defendant Moman. Alienation of 31 bighas of land to the other defendants by Malla was admitted with the submissions that it was his self acquired property which has been alienated and was in cultivatory possession of the alliances. Alienation of 31 bighas of land to the other defendants by Malla was admitted with the submissions that it was his self acquired property which has been alienated and was in cultivatory possession of the alliances. The rights asserted by the plaintiff in respect of land Chaks 2 DPN and 6 DPN were denied in toto. In the additional pleas, the defendants reiterated the fact that land of Chaks 2 DPN and 6 DPN measuring 156 bighas was previously with one Sahi Ram Jat who surrendered the same and Malla deposited the dues and obtained the land from the then Thikana of Thirana and became khatedar tenant of the same and after his death, defendants Nos. 1 and 2 were cultivating the same and they were exclusive khatedars of this land in which Ram Swaroop and Moman have no right or share. (5). The plea of res judicata was raised with the averments that previously, defendant-Moman in collusion showing Ram Swaroop as proforma defendant filed a suit against Malla for division of holdings before the Sub-Divisional Officer, Nohar which was dismissed in the year 1965 and its appeal was also dismissed by the Revenue Board, Ajmer on 31.5.1972. The matter has been finally adjudicated between these parties and fresh suit for division of holdings for the land of Chaks 2 DPN and 6 DPN cannot proceed and the matter was barred by res judicata. The defendants pleaded thus :– ^^12- ;g fd ekseu izfroknh us jkeLo:i oknh dks Performa Defendants cukrs gq, in collusion igys Hkh pUnw izfroknh ds firk Jh eykjke ds f[kykQ [kkrk rdlhe dk nkok S.D.O. Court, uksgj esa fd;k Fkk tks lu~ 1965 esa [kkfjt gks x;k rFkk mldh vihy Hkh jktLo e.My] vtesj esa fnukad 31-5-1972 dks [kkfjt gks pqdh vkSj ekeyk bUgha ikVhZt ds chp esa finally adjudicate gks pqdk gS vkSj nqckjk [kkrk rdlhe dk nkok vkjkth eqruktk okds pd 2 D.P.N. o D.P.N. dk ugha py ldrk vkSj okn esa elyk Res Judicatea vkfjt gSA** (6). The defendants, therefore, prayed that suit in respect of land in Chaks 2 DPN and 6 DPN be dismissed and in respect of land in Chak 7 DPN be decreed for division of holdings for the shares of the respective parties. (7). The suit was put to trial after framing of the relevant issues. The defendants, therefore, prayed that suit in respect of land in Chaks 2 DPN and 6 DPN be dismissed and in respect of land in Chak 7 DPN be decreed for division of holdings for the shares of the respective parties. (7). The suit was put to trial after framing of the relevant issues. Issue No. 4 was framed on the question as to whether the suit was barred by principles of res judicata. After evidence of the parties. Learned Assistant Collector, Nohar proceeded to decide the issues involved between the parties by the judgment dated 2.2.1981. On the contentious issue on the question of res judicata, the learned Assistant Collector after examining the decision rendered by the Board of Revenue dated 31.5.1972 in the appeal arising from the previous suit filed by Moman concluded that the decision therein was binding only as against the interest of Moman who was the plaintiff in that suit and was not res judicata so far the plaintiff Ram Swaroop was concerned. The findings recorded by the learned Assistant Collector and the basis thereof shall be referred hereinafter. Suffice is to notice at this juncture that the issue of res judicata was decided against the defendants. Issue No. 3 regarding the plea of the defendants that Malla was having exclusive rights in the land of Chaks 2 DPN and 6 DPN after its surrender by Sahi Ram was also decided against the defendants for want of relevant evidence. Although the defendants attempted to rely upon the previous decision in the suit filed by Moman to contend that this aspect has also been decided earlier but the learned Assistant Collector was of opinion that in the said decision, Ram Swaroop did not get an opportunity of hearing and, therefore, he was not bound by the same and as Ram Swaroop was minor at the time of the said suit, he cannot be held bound by the same. The learned Assistant Collector decided relevant issues in favour of the plaintiff and held in respect of the entire land of Chaks 2, 6 and 7 DPN that the plaintiff was having 1/3rd share and Tehsildar was directed to make proposal for division of the land 1/3rd portion each. The learned Assistant Collector decided relevant issues in favour of the plaintiff and held in respect of the entire land of Chaks 2, 6 and 7 DPN that the plaintiff was having 1/3rd share and Tehsildar was directed to make proposal for division of the land 1/3rd portion each. However, it was ordered that as the matter was res judicata so far the defendant Moman was concerned in respect of Chaks 2 DPN and 6 DPN, hence his 1/3rd share in that land would remain with the other defendants. (8). The learned Revenue Appellate Authority in the appeal filed by defendants-Chandu Ram and Bhoop Singh did not agree with the findings of the Trial Court and held that Ram Swaroop (present plaintiff) has filed in the former suit a written statement of admission in respect of claim as made by Moman Ram and the issue was directly involved amongst the parties whether the land of Chaks 2 and 6 DPN was of Malla alone. The learned Revenue Appellate Authority opined that the present plaintiff Ram Swaroop and Malla were co-defendants in the former suit and there was directly a dispute between them also about the status of the land of Chaks 2 and 6 DPN. It was wholly irrelevant whether Ram Swaroop contested the suit or not, because from his written statement of admission, it was apparent that he was aware of the dispute and the decision therein binds him also. The plea of Ram Swaroop being minor at the time of the suit was also not countenanced both on facts as well as in law. The learned Revenue Appellate Authority held the suit in respect of lands in Chaks 2 and 6 DPN to be barred by res judicata, ordered dismissal of the suit in respect of these two lands and maintained the decree in respect of the land of Chak 7 DPN. (9). The findings by the learned Revenue Appellate Authority were specifically affirmed by the learned Members of the Board of Revenue in Appeal No. 324/1983. The learned Members, inter alia, found that in the former suit also, one of the fundamental relevant question was as to whether the said land of Chaks 2 and 6 DPN was of Malla Ram alone and the decision in that respect would operate as res judicata in the present suit filed by Ram Swaroop. The learned Members, inter alia, found that in the former suit also, one of the fundamental relevant question was as to whether the said land of Chaks 2 and 6 DPN was of Malla Ram alone and the decision in that respect would operate as res judicata in the present suit filed by Ram Swaroop. The earlier decision was held conforming to all the requirements of Section 11 of the Code of Civil Procedure (CPC) and, therefore, the appeal was ordered to be dismissed. (10). The only contention put forward by the learned Counsel for the petitioner (plaintiff) in this writ petition assailing the judgment and decree passed by the Board of Revenue and Revenue Appellate Authority has been that the earlier decision would not operate as res judicata so far the plaintiff Ram Swaroop is concerned because in the former suit, Malla (father of the defendant Chandu Ram) had not denied the share of Ram Swaroop but only denied the share of the then plaintiff Moman (present defendant No. 9) and it was alleged in that former suit that Moman Ram had relinquished his share in favour of Malla in lieu of Rs. 440/- and executed a document in his Bhai. No issue relating to present plaintiff Ram Swaroop was framed nor was put to trial nor was decided by the Courts in the previous suit. The said suit was decided on the basis of Moman admitting his signature on the relinquishment deed and there was no dispute between the present plaintiff Ram Swaroop and Malla who both were defendants in the said suit. No issue was framed with regard to rights to Malla vis-a-vis the petitioner Ram Swaroop and, therefore, there was no question of applicability of the principles of res judicata upon the claim of the plaintiff Ram Swaroop. According to the learned Counsel, the judgments delivered by the Revenue Appellate Authority and the Board of Revenue dated 12.9.1983 and 29.7.1991 respectively suffer from errors apparent on the face of record and, therefore, deserve to be set aside and the suit in its entirely deserves to be decreed. (11). According to the learned Counsel, the judgments delivered by the Revenue Appellate Authority and the Board of Revenue dated 12.9.1983 and 29.7.1991 respectively suffer from errors apparent on the face of record and, therefore, deserve to be set aside and the suit in its entirely deserves to be decreed. (11). Per contra, learned Counsel for the respondents has submitted that in the previous Suit No. 59/1963 which was filed by Moman for division of the same land, Ram Swaroop was a defendant and he specifically filed a written statement of admission in the suit whereas Malla claimed exclusive rights over the land of Chaks 2 DPN and 6 DPN. On the basis of the pleadings of the parties, a specific issue was raised as to whether the land of Chak 2 DPN and 6 DPN belongs to Malla alone and that issue was specifically decided in favour of Malla and the same binds the present plaintiff Ram Swaroop as well. The findings in the former suit by the Trial Court on 6.12.1965 have been affirmed by the Revenue Appellate Authority on 8.6.1968 and by the Board of Revenue on 31.5.1972 and thereafter this suit has been filed by the plaintiff Ram Swaroop in the month of March, 1978. Learned Counsel submitted that all the requirements for applicability of the principles of res judicata are directly available in the present case as the issue in question has already been decided between the same parties and it has been held that the land belongs only to Malla and now this issue cannot be re-agitated by Ram Swaroop who was a party to the former suit. Learned Counsel also submitted that in a partition suit, all the parties stand in the capacity of plaintiff and defendant as well. The present plaintiff Ram Swaroop was although a defendant in the former suit but in view of the nature of controversy and further in view of his filing a written statement of admission, he was standing at the same footing as the then plaintiff Moman and the entire decision binds him in toto. The present plaintiff Ram Swaroop was although a defendant in the former suit but in view of the nature of controversy and further in view of his filing a written statement of admission, he was standing at the same footing as the then plaintiff Moman and the entire decision binds him in toto. Learned Counsel submitted that even if Ram Swaroop be taken to be only a defendant in former suit, then too, there was a direct conflict of interest between him and the other defendant Malla so far the land in question is concerned and whether he choose to contest the suit or not has hardly any bearing on the question as to whether the present claim is barred by res judicata or not. Learned Counsel for respondents has referred to and relied upon the decision in Ishwardas vs. State of Madhya Pradesh & Ors., AIR 1979 SC 551 , Gangappa Gurupadappa Gugwad vs. Rachawwa, AIR 1971 SC 442 , Mahboob Sahab vs. Syed Ismail & Ors., AIR 1995 SC 1205 , Chandu Lal Agarwalla & Anr. vs. Khalilur Rahaman & Ors., AIR 1950 Privicy Council 17, P.K. Vijayam vs. Kamlakshi Amma & Ors., AIR 1994 SC 2145 and Commissioner of Endowments vs. Vittal Rao & Ors., (2005) 4 SCC 120 . (12). It may be pointed out that in this writ petition, in view of the questions involved in the case, when the petition was taken up for the first time for admission on 28.10.1991, the learned Counsel for the petitioner was directed to produce the decision given in Moman Ram vs. Malla, by the Board of Revenue (i.e., the final decision in the former suit). A certified copy of the said judgment by the Board of Revenue dated 31.5.1972 was filed by the Counsel for the petitioner on 12.12.1991. However, thereafter, on 17.12.1991 this Court also requisitioned the relevant records and the records of the present Suit No. 57/1978 and so also the record of the Board of Revenue of Appeal No. 143/1968 (from previous suit) and Appeal No. 324/1983 (from the present suit) have been received. (13). However, thereafter, on 17.12.1991 this Court also requisitioned the relevant records and the records of the present Suit No. 57/1978 and so also the record of the Board of Revenue of Appeal No. 143/1968 (from previous suit) and Appeal No. 324/1983 (from the present suit) have been received. (13). Having given a thoughtful consideration to the rival submissions and having scanned through the entire record of the present writ petition and so also the records aforesaid including the record of Appeal No. 143/1968 arising out of the previous suit, this Court is clearly of opinion that impugned judgments dated 12.9.1983 and 29.7.1991 passed by the Revenue Appellate Authority and the Board of Revenue respectively do not suffer from any error and do not call for any interference in this writ petition. The petition being wholly baseless deserves to be dismissed with costs. (14). It is not in dispute that in the present suit, plaintiff Ram Swaroop has sought a declaration of his being a joint khatedar in respect of the land of Chaks 2, 6 and 7 DPN with defendant Chandu Ram and defendant Moman, each having 1/3rd share. The family pedigree is also not in dispute which shows that contesting parties are descendants of common ancestor Tansukh who had two sons, (1) Sunder alias Sandal and (2) Mukhram. Sunder alias Sandal had two sons, Malla and Sampat. Defendant No. 1 Chandu is son of Malla, whereas, plaintiff Ram Swaroop is son of Sampat. The other son of Tansukh namely Mukhram had been shown to be having three sons, Moman, Ranjeet and Lalchand. Lalchand is asserted to have died and there is no reference of his branch anywhere. Ranjeet was alleged in the previous suit by Moman to have separated himself from the joint property long back and he was not joined as party to that suit and his non-joinder was also one of the reasons for dismissal of the suit. However, his name is not seen in relevant Jamabandis and no contention has been put by either of the parties in his respect in the present suit and hence not required to be considered for the purpose of present writ petition. However, the remaining son of Mukhram namely Moman is defendant No. 9 in the present case. (15). However, his name is not seen in relevant Jamabandis and no contention has been put by either of the parties in his respect in the present suit and hence not required to be considered for the purpose of present writ petition. However, the remaining son of Mukhram namely Moman is defendant No. 9 in the present case. (15). This very defendant No. 9 Moman earlier filed a suit for division of holdings arraying Malla and Ram Swaroop as defendants Nos. 1 and 2 and another person Phool Singh son of Chatar Singh as defendant No. 3 with State of Rajasthan as defendant No. 4 proceedings against Phool Singh were later on dropped. A certified copy of the plaintiff filed in the previous suit has been produced on record in the present suit as Exhibit D.1. The suit was filed on 30.5.1961 in which the plaintiff Moman claimed in respect of the same total 218 bighas of land of Chak 7 Deeplana, Chak 2 Deeplana and Chak 6 Deeplana that the plaintiff Moman, defendant Ram Swaroop and defendant Malla each was having 1/3rd share therein; then some alienations by Malla were put to question and it was claimed that the plaintiff wanted the holdings to be divided to get his 1/3rd share separated. The plaintiff prayed for the relief of separation of his 1/3rd share by way of partition. A written statement of admission of the entire plaint averments in toto was filed by Ram Swaroop who was the defendant in the said suit. A certified copy of this written statement has also been produced as Exhibit D. 2 in the present suit. The defendant Ram Swaroop submitted therein that Paras 1 to 6 of the plaint were entirely correct and were admitted. He further submitted that he has no objection if according to the plaint averments, the joint holdings were partitioned. A certified copy of the judgment delivered by the Board of Revenue in Appeal No. 143/1968 which arose out of the said suit filed by Moman has also been produced on record by the defendant. The fact that earlier suit so filed and was dismissed upto the stage of the Board of Revenue has never been in dispute. The certified copy of the judgment of the Board of Revenue has been referred as Exhibit D. 17 in the statement of Chandu Ram DW. 1. The fact that earlier suit so filed and was dismissed upto the stage of the Board of Revenue has never been in dispute. The certified copy of the judgment of the Board of Revenue has been referred as Exhibit D. 17 in the statement of Chandu Ram DW. 1. However, as the said judgment dated 31.5.1972 does not recite the exact issues framed in the said suit, it shall be worthwhile to refer to the certified copy of the judgment dated 6.12.1965 which was delivered by the Trial Court, SDO, Nohar in the suit from which the said appeal before the Board of Revenue arose after the first appeal was decided by the Revenue Appellate Authority. (16). From the judgment dated 6.12.1965, it is found that apart from the issue of relief, five issues were framed by the Trial Court on the questions, as to whether the plaintiff (Moman) was entitled to have the land of 218 bighas in Chaks 7, 2 and 6 Deeplana partitioned; as to whether the plaintiff has already separated from defendant Malla and executed the document in his Bhai, therefore, he was not entitled to maintain the suit; as to whether suit was within limitation; as to whether the suit was suffering from non-joinder of parties; and as to whether the land of about 156 bighas 15 biswas was self acquired property of Malla in which the plaintiff had no right? It seems that the suit was earlier decreed on 19.6.1962 but the decree was set aside and the matter was remanded by the Revenue Appellate Authority and the issue No. 4 regarding non-joinder of parties was amended to the effect as to whether Ranjeet was a necessary party to the suit and it was also directed that status of the land and entitlement thereto be decided after giving an opportunity of evidence to the defendant. In accordance with these directions, the evidence was recorded and thereafter the Trial Court decided the issues afresh delivering the judgment on 6.12.1965. Regarding issue No. 2 of the plaintiff having executed a document in the Bahi of the defendant, the finding was recorded in favour of the defendant. Ranjeet was held to be a necessary party to the suit as the plaintiff failed to show as to what share he received in the land and, therefore, this issue was also decided against the plaintiff. Ranjeet was held to be a necessary party to the suit as the plaintiff failed to show as to what share he received in the land and, therefore, this issue was also decided against the plaintiff. Issue No. 5 regarding surrender of the aforesaid 156 bighas land by Sahi Ram and obtaining of the same by defendant Malla was also specifically decided in favour of the defendant and it was held that the disputed land was obtained by Malla- defendant from Thikana Thirana in which the plaintiff had no right. In view of the findings aforesaid, the suit was ordered to be dismissed. For continuity of narration, it may also be noticed that Appeal No. 8/66 was taken by the plaintiff Moman before the Revenue Appellate Authority against the said judgment and decree dated 6.12.1965 and this appeal was dismissed by the Revenue Appellate Authority, Bikaner on 18.4.1968. All the findings of the Trial Court were affirmed by the Revenue Appellate Authority and it was held that issue No. 5 had rightly been decided in favour of the defendant, as it was proved that defendant Malla alone has taken the said land of about 156 bighas from Thikana Thirana. After the aforesaid two decisions, second appeal before the Board of Revenue too was dismissed on 31.5.1972 and this is subject matter of consideration as to whether the findings therein operate as res judicata or not? (17). In the judgment dated 31.5.1972, the learned Members of the Board firstly affirmed the finding on the re-cast issue No. 4 was the observation that it was plaintiffs duty to have made all the alive successors necessary parties to the suit. The learned Members of the Board thereafter observed that no much evidence was produced by the plaintiff before the Trial Court support of his suit but he admitted his signature on the document (Bhai) Exhibit D. 1 and upon reading of the said document and appreciating the evidence produced by the parties, the learned Members found that defendant successfully rebutted the presumption available for the record of rights and was able to establish that mutual partition of the land had been effected by an agreement between the two contesting parties by mutual drawn agreement in the family `Bhai. The learned Members referred to Section 53 of the Rajasthan Tenancy Act which envisages division of agriculture holdings in two manner, namely, by agreement between co-tenants or by a decree or order of competent Court, and held :– ``In the instant case the division of joint holding has been effected by an agreement between the appellant (plaintiff) and the respondent No. 1 (defendant) by a mutual drawn document in the family Bhai which is in the possession of respondent No. 1." (18). The learned Member also referred to the fact that although this entry in the Bhai was not dated and want of execution date would have been fatal but for the admission of the plaintiff himself that such a private partition had taken place, the learned Members found that there was no reason to doubt the veracity of this document Exhibit D. 1 and the appreciation of evidence by the two Courts below was held to be correct. The objection regarding want of registration of this kind of partition was also not countenanced on the consideration that it was a family settlement and binding on the parties and even unregistered partition deed could be looked into for the terms of partition and establishing servance of status. Thereafter, the learned Members specifically referred to the other aspect of the matter that this about 156 bighas and 15 biswas of land was acquired by Malla alone. While discussing the evidence, it was held :– ``We further find that the respondent No. 1 has successfully proved in the Trial Court that Sahi Ram had 291 bighas 12 biswas land in village Marwana from the then Jagirdar. He kept 134 bighas 17 biswas land for his cultivation and surrendered 156 bighas 15 biswas land. He wrote out a surrender document (Exhibit D./2). This surrender was accepted by Chandra Singh Kamdar of the Thikana as recorded in the back of surrender document marked Exhibit D.2. Chandra Singh was Kamdar in the Thikana Thirana in which village Marwana is situated at that time and he has testified to Exhibit D/2 document as well as rent receipts marked Exhibit D./3 to Exhibit D/5 which go to prove that respondent No. 1 used to pay rent for the land surrendered by Sahi Ram. Chandra Singh was Kamdar in the Thikana Thirana in which village Marwana is situated at that time and he has testified to Exhibit D/2 document as well as rent receipts marked Exhibit D./3 to Exhibit D/5 which go to prove that respondent No. 1 used to pay rent for the land surrendered by Sahi Ram. This land was given by the Thikana to Malla respondent No. 1 after surrender as the entries on the back of the surrender by Sahi Ram. This land was given by the Thikana to Malla respondent No. 1 after surrender as the entries on the back of the surrender deed clearly prove as well as the statement of Chandra Singh DW. 5. This land could not be mixed up with the suit land sought to be partitioned. The plaintiff has failed to prove in both the lower Courts that the land surrendered by Sahiram which was allowed to him by Thikana Thirana was not separate from any other joint land held by the two contesting parties. (19). The conclusions by the Courts below were held to be not calling for any interference and accordingly, the appeal was dismissed. (20). It would be useful to recapitulate that Ram Swaroop plaintiff was a defendant in that very suit wherein division of holdings was claimed and he specifically filed written statement of admission of the entire plaint averments and placed himself for all practical purposes at par with the plaintiff. It was the defendant Malla alone who contested the suit, inter alia, on the grounds that Moman had already signed the family Bahi for division of holdings, and that the land of about 156 bighas was the self acquired property of Malla and was not joint property. All the three Courts have recorded findings on these material issues against the plaintiff Moman and in favour of the defendant Malla. It would also be useful to notice that although it has been sought to be asserted that Ram Swaroop did not join the issues in the earlier suit and the dispute was only between Moman and Malla and any decision therein would not bind him, but the fact remains that Ram Swaroop filed a written statement of admission and claimed that he had no objection if the joint holdings as described in the plaint be partitioned. He, therefore, obviously claimed that the entire holding of Chaks 2, 6 and 7 DPN was a joint holding. This stand and averment in support of the plaintiff ran squarely counter and contrary to stand of other defendant Malla who categorically claimed that the disputed parcel of land of about 156 bighas could not be mixed up in the claim for division of holding as it was a joint property. In may also be usefully pointed out that this very petitioner plaintiff Ram Swaroop had personally appeared before the Board of Revenue, as is apparent form his signatures on the margin of the order-sheet dated 17.12.1969 in Appeal No. 143/68 and in the order-sheet his personal presence has been recorded. It was the stage when the plaintiff-appellant in that appeal, Moman, was being directed by the Court to positively file process fee and notices for service on the respondents Nos. 2 and 3. Ram Swaroop was the respondent No. 2 in that appeal and with his appearance on 17.12.1969, his service was complete and the notices for respondent No. 3 were issued. (21). The said suit filed by Moman met with its finale in the judgment of the Board of Revenue dated 31.5.1972. Thereafter, the present suit by Ram Swaroop in respect of the same land as was the subject matter of the former suit was filed on 14.3.1978 and it was clearly an attempt to re-agitate the entire matter over again, this time in the name of Ram Swaroop. Although it was in his knowledge that in respect of the land of Chaks 2 and 6 DPN, a specific finding had already been recorded by the competent Court that the same was a Khatedari of Malla alone and not a part of joint holding, the plaintiff clause not to state anything in the plaint about the previous litigation at all. The defendants Nos. 1 and 2 contested the suit. Defendant No. 1 being son of Malla is litigating under the same title and on the same basis as his heir. Binding decision in the former suit was referred and two relevant issues Nos. The defendants Nos. 1 and 2 contested the suit. Defendant No. 1 being son of Malla is litigating under the same title and on the same basis as his heir. Binding decision in the former suit was referred and two relevant issues Nos. 3 and 4 framed in this suit read as under:– ^^3 vk;k vkjkth tjbZ D.P.N. o 6 D.P.N. rknknh djhcu 156 fdyk igys ,d lghjke tkV dh Fkh tks fd fBdkuk ds oDr gh NksM+ nh vkSj izfroknh ua- 1 ds firk eqroQh eyw us fBdkuk ls cdk;k jde nkf[ky dj gkfly dj yh vkSj vc mDr Hkwfe izfroknh ua- 1 pUnq o mlds yM+ds Hkqiflag dh gh [kkrsnkjh o dCtk dkr dh gS vkSj mlesa jkeLo:i o ekseu dk dksbZ gd o fgLlk ugha gSA ¼izfroknh½ 4- ;g gS fd ekseu izfroknh us in collusion oknh jkeLo:i ds izfroknh ua- 1 pUnq ds firk eywjke ij [kkrk rdlhe dk okn fd;k Fkk tks finally jktLo e.My vtesj rd fnukad 31-5-1972 dks [kkfjt gks x;k vkSj vc mlh Hkwfe ij nqckjk okn ugha yk ldrs vkSj oknh ds f[kykQ elyk Res-judicata vkfjt gS ¼izfroknh½** (22). The learned Assistant Collector who decided the issues by the judgment dated 2.2.1981 adopted the consideration on the question of res-judicata that the earlier decision was mainly based on the family Bahi and in that family Bahi, the division was agreed between Moman and Malla and not Ram Swaroop. The Assistant Collector firstly referred to the lines in the judgment of the Board of Revenue dated 31.5.1972 wherein it was recorded that ``Ram Swaroop S/o Sampat has not raised any objection in respect of the present suit in the trial. From these observations, the learned Assistant Collector deducted that Ram Swaroop did not take any interest at that time because of the reason that no relief was claimed for or against him. From these observations, the learned Assistant Collector deducted that Ram Swaroop did not take any interest at that time because of the reason that no relief was claimed for or against him. Therefore, the findings in the judgment of the Board of Revenue regarding the scribing of the agreement in the Bahi were reproduced and after reading the same, the learned Assistant Collector observed that in the earlier decision, family Bahi was the main basis and in the family Bahi partition was decided between Moman and Malla only but Ram Swaroop was never referred in the family Bahi and when Ram Swaroop was not concerned with the same, how could he be held bound by the same and how res judicata be applied upon him? It was again observed that when nothing was being decided qua Ram Swaroop, then it was natural for him not to take any interest and even if Malla decided anything regarding Ram Swaroop in that statement which was scribed some-where in the year 1950, Ram Swaroop was minor at that time and without legal authority such document was meaningless. (23). Thereafter, the learned Assistant Collector in a wholly cursory manner brushed aside the effect of finding regarding the land surrendered by Sahi Ram and the same going to Malla in the following words :– ^^lghjke }kjk Hkwfe ljsUMj djus dh ckr vkSj Hkwfe eYyk dh lkfcr gksus dh ckr Hkh ekseu vkSj eYyk ds chp r; gqbZ blesa tc jkeLo:i dks lquk gh ugha x;k vkSj mlus dksbZ iSjoh gh ugha dh rks og mlls ckf/kd dSls gks ldrk gSA orZeku izdj.k esa izfroknh us bl rF; dks lkfcr djus dk dksbZ vk/kkj isk ugha fd;k gSA fcuk lquokbZ dk ekSdk fn;s dksbZ fu.kZ; ls jkeLo:i dk Res judicata ekuuk U;k;ksfpr ugha ekuk tk ldrkA Finally decide ds fy;s mHk; i{k dks lquuk o ekSdk nsuk U;k; dh n`f"V ls vko;d gSA** The learned Assistant Collector further observed :– ^^vr% mDr foospu ls Li"V gS fd tc iwoZ izdj.k esa jkeLo:i ls lacaf/kr dksbZ vuqrks"k ugha Fkk] fu.kZ; ds vk/kkjksa esa jkeLo:i dk ftØ ugha Fkk vkSj mlds laca/kksa esa jkeLo:i dh mfpr lquokbZ ugha gqbZ Fkh rks ,sls fu.kZ; ls mls Res judicata ugha ekuk tk ldrk gSA (24). The learned Assistant Collector also proceeded on the assumption that Ram Swaroop was minor at the relevant time and, therefore, also, he was not bound by the said decision. The learned Assistant Collector was of opinion that for any issue to be finally decided, it has to be a matter in issue between the same parties under the same title but as in the previous suit, the case of Ram Swaroop was never put to issue and no proper hearing was made, then it cannot be termed as finally decided and on these considerations, it was concluded that the present suit was not barred by res-judicata. (25). It is also relevant to notice that on issue No. 3 regarding 156 bighas of land, the consideration by the learned Assistant Collector had been that the defendant has not attempted to prove anything on this issue and he did not filed any relevant document. The defendant has produced the copy of the decision of the Revenue Board in the earlier suit : Moman vs. Malla but Ram Swaroop did not get an opportunity of hearing and, therefore, he could not be held bound by the same. The defendant has produced the copy of the decision of the Revenue Board in the earlier suit : Moman vs. Malla but Ram Swaroop did not get an opportunity of hearing and, therefore, he could not be held bound by the same. Issue No. 3 has been decided in the following words:– ^^rudh ua- 3 %& ;g rudh izfroknh dks fl) djuh Fkh blesa fl) fd;k tkuk Fkk fd 156 ch?kk Hkwfe lghjke tkV dh Fkh vkSj mlus surrender dj nh vkSj izfroknh ua 1 ds firk eqr- eYyk us cdk;k jkfk yxku Hkjdj fBdkuk fFkjk.kk ls izkIr dj yhA bl Hkwfe esa jkeLo:i o ekseu dk dksbZ gd ugha gSA bu rudh dks fl) djus dk izfroknh }kjk dksbZ iz;kl ugha fd;k x;kA mlds }kjk u rks bl laca/k esa fjdkMZ gh isk fd;k u dksbZ ekSf[kd lk{; gh djk;k] vr% ;s bl rudh dks fl) djus esa foQy jgs gSaA izfroknh }kjk jktLo e.My ds fu.kZ; dh izfrfyfi isk dh gS mlesa bl laca/k esa iwoZ ds okn ekseu cuke eYyk esa fu.kZ; fn;k x;k gS ysfdu blesa jkeLo:i dks lquus dk dksbZ ekSdk ugha feykA vr% og mlls ckf/kr ugha ekuk tk ldrkA blds vykok og mDr okn ds le; ukckfyx Fkk] ,slh gkyr eas dksbZ fMØh ;k fu.kZ; ls mls ck/; U;k; dh n`f"V ls ugha fd;k tk ldrkA bl laca/k esa iw.kZ foospu rudh ua- 4 esa fd;k tk pqdk gS vr% ;g rudh dk QSlyk oknh ds gd esa fn;k tkrk gSA** (26). The observations as quoted and noticed hereinabove on the basis of which the learned Assistant Collector held that principles of res judicata would not apply to the claim of Ram Swaroop for partition in respect of the land of Chaks 2 and 6 DPN are fundamental incorrect on facts as well as in law. The consideration adopted by the learned Assistant Collector on the assumption as if there was no lis concerning Ram Swaroop and, therefore, he was disinterested in the former suit and did not take part in the proceedings is factually incorrect. Ram Swaroop was vitally and directly interested in the subject matter of litigation in the earlier suit and he was not only interested but overtly submitted a written statement of admission in the said suit saying that he had no objection if the ancestral property as described in the plaint be partitioned. Ram Swaroop was vitally and directly interested in the subject matter of litigation in the earlier suit and he was not only interested but overtly submitted a written statement of admission in the said suit saying that he had no objection if the ancestral property as described in the plaint be partitioned. If partition was to be made as claimed in that suit filed by Moman, Ram Swaroop was to get 1/3rd share therein. As noticed above, Ram Swaroop had personally presented himself before the Board of Revenue in second appeal. It was fundamentally incorrect on the part of the learned Assistant Collector to proceed on the assumption that Ram Swaroop was not interested in the former suit not took part in the proceedings. The observation by the learned Assistant Collector that Ram Swaroop did not get an opportunity of hearing is also apparently erroneous. Ram Swaroop had every opportunity and had participated in the proceedings right upto the second appeal. (27). Secondly, even if it be assumed for the sake of arguments that he did not prosecute the suit so far his interest was concerned, that it hardly of any relevance. Ram Swaroop was aware of litigation and he chose to side with the plaintiff who was claiming entire holding of Chaks 2, 6 and 7 DPN to be joint property. His written statement of admission put him directly in conflict with Malla so far the land of Chaks 2 and 6 DPN was concerned, as Malla was categorically claiming that the same was not a part of joint holdings at all. (28). On the principles of law, the learned Assistant Collector has again erred on a fundamental aspect of the matter. It is true that so far the family settlement and the writing in the family Bahi was concerned, that question was squarely between Malla and Moman only and Ram Swaroop was not party to it and had that being only finding in the earlier suit, non-suiting the then plaintiff Moman on the basis of his admission in the Bahi of Malla and on the basis of his giving up his rights, then, of course, it would have been a matter different. However, as noticed above, apart from the admission claimed against Moman, it was the categories case of Malla in the former suit that this 156 bighas of land is not a part of joint holding at all and it was claimed to be itself acquired property of himself after the same was surrendered by Sahi Ram to then Thikana and his having obtained the same from Thikana after making requisite payment. A categoric finding was recorded in the former suit in respect of this issue also and it was specifically held that this land was given by Thikana to Malla after its surrender and it could not be mixed up with the lands sought to be partitioned. The finding by the two Courts below has been specifically affirmed by the Board of Revenue and as noticed hereinabove, the finding recorded on the issue No. 5 has been categoric and in no uncertain terms that this land was of Malla alone. This finding in favour of Malla binds not only Moman but Ram Swaroop as well as there is a categoric decision made in favour of Malla, and against all claims to the contrary, that this particular land is not a part of joint holding. Ram Swaroop was aware of the litigation, was a party to it, and he placed himself in league with the plaintiff, and thereafter, the effect of categoric finding in favour of Malla binds Ram Swaroop with equal force as its binds Moman and cannot be ignored by assuming that this finding was also recorded between Moman and Malla only and Ram Swaroop was not heard, nor he conducted the proceedings. (29). It sounds rather stranger that learned Assistant Collector has repeatedly proceeded on this assumption that Ram Swaroop was not given an opportunity of hearing and, therefore, the issue cannot be deemed to have been heard and finally decided. A party to the suit on his own volition of chooses to remain ex-parte or not to take part in the proceedings, he cannot be heard to say that proper opportunity of hearing was not extended to him. It may be usefully noticed that there was some attempt made before the Courts below to suggest the other ground of avoiding the judgment in the former suit on the ground that Ram Swaroop was minor at that time. It may be usefully noticed that there was some attempt made before the Courts below to suggest the other ground of avoiding the judgment in the former suit on the ground that Ram Swaroop was minor at that time. This contention has been dealt with in correct perspective and rejected by the learned Revenue Appellate Authority and in the present writ petition, the petitioner has not assailed the previous decision on the ground of his minority nor any such contention has been pressed in service by the learned counsel, and rightly so, as the same has been found to be incorrect on facts as well as in law by the Revenue Appellate Authority. (30). The learned Revenue Appellate Authority on the question of res judicata had dealt with the matter in sufficient detail and has rightly found that all the ingredients requisite for applicability of res judicata were available in this case and the fundamental issue as to whether the land of Chaks 2 and 6 DPN was of joint khatedari with each party having 1/3rd share was common in both the suits between the same parties and res judicata would apply. The learned Members of the Board have succinctly summed up the issue involved in both the suits and effect thereof thus:- ^^;g izekf.kr gS fd nksuksa eqdneksa esa ;s rhuksa O;fDr i{kdkj Fks ftl Hkwfe ds ckjs esa eqdnek pyk Fkk oks nksuksa eqdneksa esa leku gS ftl fcUnq ij fu.kZ; ysuk Fkk oks nksuksa eqdneksa esa leku gSa rFkk fiNys eqdnesa dk fu.kZ; ,sls l{ke U;k;ky; }kjk fy;k x;k Fkk tks bl eqdnesa dks Hkh fu/kkZfjr djus dh kfDr j[krk gSA bl rjg ls /kkjk 11 ds izko/kku o lHkh krsZ bl eqdnesa esa ykxw gSA** (31). Learned counsel for the petitioner has emphasized that there was not formal issue framed so far as the interest of Ram Swaroop was concerned in the former suit and, therefore, res judicata would not apply. The contention is not correct. The Honble Supreme Court in the case of Commissioner of Endowments & Ors. vs. Vittal Rao & Ors. (supra), has held,– ``On the facts of the case, it is clear that though an issue was not formally framed, the issue was material and essential for the decision of the case in the earlier proceeding. Hence, the bar of res judicata applies to the facts of the present case. (32). vs. Vittal Rao & Ors. (supra), has held,– ``On the facts of the case, it is clear that though an issue was not formally framed, the issue was material and essential for the decision of the case in the earlier proceeding. Hence, the bar of res judicata applies to the facts of the present case. (32). Therefore, on the facts of the case, if a particular issue even if not formally framed but was material and essential for decision of the case, the bar of res judicata applies. It was directly material in the earlier decision as to whether the land was not a joint holding but was self acquired property of Malla alone. The decision on this question binds every party to that suit. (33). In the case of Gangappa Gurupadappa Gugwad (supra), the Honble Supreme Court observed that it would be open to a Court not to a decide all the issues which may arise before it if it finds that the plaint on the face of it is barred by any law. It was held that if, however, final decision in any matter at issue between the parties is based by a Court on its decision on more than one point, where each of which by itself would be sufficient for the ultimate decision, the decision on each of these points, operates as res judicata between the parties. (34). Although, the position of Ram Swaroop in the former suit was not of a mere defendant, that is a person against whom the plaintiff was directly litigating out, inasmuch as the suit was for division of holdings and in such kind of a partition suit, all the parties are in the capacity of plaintiff as well as defendant; however, even if it be assumed for the sake of arguments that he was merely a defendant and was not as such litigating against the other defendant Malla, then too, it is apparent that the decision would operate res judicata. Firstly, as noticed above, by filing a written statement of admission, Ram Swaroop had put himself directly at conflict with other defendant Malla and, therefore, the plea raised by Malla of his being exclusive khatedar of lands of Chaks No.2 DPN and 6 DPN became a plea against the interest of Moman as well as Ram Swaroop. Firstly, as noticed above, by filing a written statement of admission, Ram Swaroop had put himself directly at conflict with other defendant Malla and, therefore, the plea raised by Malla of his being exclusive khatedar of lands of Chaks No.2 DPN and 6 DPN became a plea against the interest of Moman as well as Ram Swaroop. Secondly, the finding was necessary for determination of real questions directly and substantially in issue, and Ram Swaroop was equally a party to that question as to whether the land of 2 and 6 DPN were of Malla alone or were available for partition as joint holding? The finding returned in favour of Malla binds Ram Swaroop as much as it binds Moman. (35). The principles of law applicable for res judicata as between the parties who had been co-defendants in the previous suit as enunciated in Munni Bai vs. Tirloki Nath (AIR 1931 Privy Council 114) have been reiterated in the case of Chandu Lal Agarwalla & Ors. (supra) thus:- ``.....there must be (1) a conflict of interest between the co-defendants, (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief, and (3) a decision of that question between the co-defendants. It may be adduced that the doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, if such a party is to be bound by a previous judgment, it must be proved clearly that he had or must be deemed to have had notice that the relevant question was in issue and would have to be decided. (36). In the case Mahboob Sahab (supra), the Honble Supreme Court has held following and approving earlier decision that:- ``But for application of this doctrine between co- defendants four conditions must be satisfied,namely, that (1) there must be a conflict of interest between the defendants concerned; (2) it must be necessary to decide the conflict in order to give the reliefs which the plaintiff claims; (3) the question between defendants must have been finally decided; and (4) the co-defendants were necessary or proper parties in the former suit. This is the settled law as held in S.M. Sadat Ali Khan vs. Mirza Wiquar Ali, (AIR 1943 PC 115); Shashibushan Prasad Mishra vs. Babuji Raj ( 1969(2) SCR 971 = AIR 1970 SC 809 ); and Iftikhar Ahmed vs. Syed Meharban Ali ((1974) s SCC 151 = AIR 1974 SC 749 ). Take for instance that if in a suit by `A against `B & `C, the matter is directly and substantially in issue between B and C, and an adjudication upon that matter was necessary to determine the suit to grant relief to `A; the adjudication would operate as res judicata in a subsequent suit between B and C in which either of them is plaintiff and the other defendant. In other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide the case, and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other." (37). This Court is clearly of opinion that the settled principles of law aforesaid apply from every angle and corner to the facts of the present case. There was directly a conflict of interest between Ram Swaroop and Malla in the former suit. Of course, this conflict of interest stood at equal footing to that conflict of interest which was between Moman and Malla. This conflict of interest as to whether the land in question was available for partition or not, or as to whether it belongs to Malla alone was definitely required to be decided in order to give relief which the plaintiff was claiming. There is no dispute that the question has been finally decided by competent courts and so also that Malla and Ram Swaroop were necessary parties to that suit. It is undeniable that am swaroop got and availed every opportunity of hearing in that former suit. The decision in the former suit hits the then defendant, and now the plaintiff, Ram Swaroop fair and square. (38). The issues sought to be raised in the present suit have already been heard and finally decided. It is undeniable that am swaroop got and availed every opportunity of hearing in that former suit. The decision in the former suit hits the then defendant, and now the plaintiff, Ram Swaroop fair and square. (38). The issues sought to be raised in the present suit have already been heard and finally decided. The attempt on the part of Ram Swaroop to re-agitate the same issue regarding land of Chaks 2 and 6 DPN has rightly been foiled by the Revenue Appellate Authority and the Board of Revenue by finding the suit in respect of these two parcels of land to be barred by res judicata. The present writ petition has neither any substance nor any merit and deserves dismissal. (39). As a result of the aforesaid, the writ petition fails and is dismissed with costs quantified at Rs.2000/- to be paid by the plaintiff Ram Swaroop to the respondents No.4 and 5. (40). The records received in this case be returned to the Courts concerned. A copy of this order be sent to the Assistant Collector, Nohar before whom the parties shall appear on 25.8.2005 for further proceedings in accordance with law.