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2007 DIGILAW 1402 (PNJ)

Chandro Devi v. Suresh Sharma

2007-07-26

VINOD K.SHARMA

body2007
JUDGMENT Vinod K. Sharma, J. (Oral) - This regular second appeal has been filed against the judgments and decrees passed by the learned Courts below vide which suit for possession filed by the plaintiff appellants, has been ordered to be dismissed. 2. The suit for possession was filed by the plaintiff appellants by claiming themselves to be owners of the suit property, which was said to be owned by Chattar Singh predecessor-in-interest of the plaintiffs and defendant No. 2 as well as Sher Singh son of Ram Dayal in equal shares. 3. The suit was contested by defendant No. 1 on the plea that the property in dispute was sold to him by Chattar Singh son of Kewal Singh and Sher Singh son of Ram Dayal vide registered sale deed dated 11.5.1976. The said sale was challenged by the plaintiff appellants. However, the said suit was dismissed on 14.3.1984. 4. On the pleadings of the parties one of the issues framed was "Whether the suit was barred by principle of res judicata and constructive res judicata ?" 5. The learned Courts below keeping in view the copy of the plaint, written statement and judgment brought on record have recorded a finding that the subject matter of the dispute is the same and the parties were also the same under whom they or any of them claim litigating under the same title. Consequently, the suit was ordered to be dismissed being barred by res judicata. 6. The learned counsel for the appellants contends that the finding of the Courts below cannot be sustained as on an earlier occasion the suit was filed challenging the sale on the ground that it was a coparcenary property and, therefore, Chattar Singh and Sher Singh had no right to dispose of the same as the plaintiff-appellants had interest in the said land by their birth. In the said suit the Court came to the conclusion that the sale was for legal necessity and the said sale was upheld. The learned counsel for the plaintiff appellants suggested that now the present suit was filed on the basis of ownership after the death of the father and, therefore, the cause of action was altogether different and, therefore, the earlier judgment cannot operate as res judicata. The learned counsel for the plaintiff appellants suggested that now the present suit was filed on the basis of ownership after the death of the father and, therefore, the cause of action was altogether different and, therefore, the earlier judgment cannot operate as res judicata. In support of this contention, learned counsel for the appellants placed reliance on the judgment of the Honble Supreme Court in the case of Mathura Prasad Sarjoo Jaiswal and others v. Dissibai N.B. Jeejeebhoy, AIR 1971 Supreme Court 2355. Para 10 of the said judgment, on which reliance has been placed, is reproduced below :- "10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in Section 11, Code of Civil Procedure, means the right litigated between the parties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of the order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land. 7. The authority relied upon by the learned counsel for the appellants is not applicable to the facts of the present case. The plea raised in second suit is not a question of law. Rather in the second suit plea raised was that the sale deed was a false and fictitious document and was not executed by the vendor. All pleas available to the appellants was in the previous suit. The plea raised in second suit is not a question of law. Rather in the second suit plea raised was that the sale deed was a false and fictitious document and was not executed by the vendor. All pleas available to the appellants was in the previous suit. Therefore, the learned Courts below were justified in dismissing the suit being barred by the principle of res judicata. No merit. Dismissed. Appeal dismissed.