JUDGMENT : Sureshwar Thakur, J. 1. The plaintiffs instituted a suit against the defendants, claiming therein a decree for declaration, possession, permanent prohibitory injunction as well as for mandatory injunction. The suit of the plaintiffs stood decreed by the learned trial Court. In an appeal carried therefrom by the defendants before the learned First Appellate Court, the latter Court dismissed the appeal, whereupon, it concurred with the verdict recorded by the learned trial Court. In sequel thereto, the defendants/appellants herein are driven to institute the instant appeal herebefore. 2. Briefly stated the facts of the case are that original plaintiff Sasaru filed a suit against the defendant seeking declaration to the effect that the plaintiff is joint owner in possession alongwith proforma defendant No.3 of the suit land along with the houses the description of which has been given in the plaint and defendant No.1 was a licensee with consequential relief of permanent injunction restraining the defendant from interfering in the right, title or interest of the plaintiff and in the alternative for mandatory injunction to vacate the land and the houses or for possession. It was averred that the plaintiff was 95 years old and she is of weak mind living with his old wife and has no male issue except two daughters, one from first wife Smt. Lakshmi and the other daughter never came to see him and she is residing with defendant No.1. The plaintiff was unable to perform the manual work and whenever the plaintiff and his wife arranged the services of any one for doing the agriculture work, defendant No.1 having eye on the property of the plaintiff threatened those persons. Defendant No.1 also advised the plaintiff not to bring any body from outside and had been telling that the Will which the plaintiff has executed in favour of Ram Singh be got revoked. The plaintiff had actually executed a Will in favour of Ram Singh but the said Ram Singh was compelled by defendant No.1 to leave his house. Defendant No.1 had greedy eyes on the property of the plaintiff and arranged for all work claiming that it is his duty to look after old person and similarly after some time he also assured the plaintiff that he will arrange for harvesting the crop and the same will be stored at the house of the plaintiff to which the plaintiff agreed. It was further averred by the plaintiff that defendant No.1 being the Pradhan of the adjoining Panchayat and dominated the Will of the plaintiff and took him under his influence. Defendant No.1 on the pretext of revoking the earlier Will brought the plaintiff to Bilaspur on 5.3.1982 to cancel the Will executed by the plaintiff in favour of Ram Singh to which the plaintiff agreed and signed the document for cancellation as he was told that it was a deed of cancellation of earlier Will and the same was registered with Sub Registrar, Bilaspur. At the time of sowing the Kharif crop, defendant No.1 assured the plaintiff that he may be allowed to cultivate the land and defendant No.2 was allowed to do the household work. The plaintiff and his wife believed them and allowed them to serve, cultivate the land in lieu of the services promised to be rendered and for providing them all the necessity of life. It was further averred that the defendant cultivated suit land as licencee without any right, title or interest and continued doing so far a year. In the meantime, the defendants threatened to oust him from the house on the plea that defendant No.1 got gift deed of the property of the plaintiff. As such, the plaintiff filed an application under Order 33, Rule 1 CPC, for permitting the plaintiff to sue as an indigent person. The defendants contested the application and appared through his counsel and filed the reply. The defendants did not allow him to appear in the Court and as such, the application was dismissed for want of presence. Defendant No.1 for another one year worked as licencee but when proforma defendant No.3 filed a suit before the Court of learned Senior Sub Judge, Bilaspur, in which the plaintiff also filed the reply and admitted the claim preferred by her and defendant No.1 upon which become angry. However, proforma defendant No.3 withdrew the suit with permission to file afresh. The plaintiff had to admit certain facts during the pendency of the suit and the learned Senior Sub Judge decreed the suit and declared the gift null and void. Both the parties have gone in appeal against that order before the learned District Judge. Defendant No.1 thereafter did not perform his promise and left the plaintiff and his wife in distress. Both the parties have gone in appeal against that order before the learned District Judge. Defendant No.1 thereafter did not perform his promise and left the plaintiff and his wife in distress. Defendant No.1 has also filed written statement in civil suit in a case titled Hardei Vs. Lekh Ram on 7.9.1989 and started claiming his title on the basis of the gift which he has abandoned long before. However, the defendant took him to his house saying that he had no claim for the alleged gift and upon his assurance the plaintiff allowed him to cultivate his land in lieu of the services to be rendered and maintained him and his wife decently from the agriculture income of the land of the plaintiff. 3. The defendants contested the suit and filed written statement. In their written statement, they have pleaded that the plaintiff has executed a registered gift deed in favour of defendant No.1 on 5.3.1982 and the possession thereof was delivered to him and after the executing of the gift deed defendant No.1 is owner in possession of the suit land. The plaintiff is hale and hearty but is a chronic litigant and as such this false and frivolous suit has been filed simply to harass the defendant and to get the gift deed set aside. It is further averred by the defendant that the plaintiff was properly maintained by defendant No.1. It is denied that the plaintiff was brought to Bilaspur for revoking the Will. Defendant No.1 is maintaining the plaintiff and paying all expenses. It is also denied that the plaintiff is in a possession of the suit land. The defendant never worked as licencee, but he is owner in possession of the suit land and the plaintiff has no right, title or interest and even the previous suit was filed by Hardai in connivance with the plaintiff. Certain preliminary objections as to limitation, resjudicata, cause of action and maintainability were further raised on behalf of the defendants. 4. The plaintiff filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. 4. The plaintiff filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and re-affirmed and re-asserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff and proforma defendant are joint owner in possession of the suit land and residential house situate over it as alleged? OPP 2. Whether the plaintiff is entitled for relief of permanent prohibitory injunction as agreed?OPP. 3. Whether the plaintiff is entitled for decree of mandatory injunction as prayed? OPP. 4. Whether the suit is barred under Section 11 CPC? OPD. 5. Whether the suit is time barred? OPD. 6. Whether the suit is not maintainable as the parties have entered into alleged compromise? OPD. 7. Whether the suit is not maintainable as the first suit filed by the plaintiff on the same cause of action which was dismissed?OPD. 8. Whether the suit of the plaintiff is not maintainable as alleged in para 5 of the written statement, as alleged? OPD 9. Whether the plaintiff is estopped to file the present suit by his act and conduct? OPD. 10. Whether the plaintiff has executed a valid gift deed and handed over the possession of the suit land in favour of defendant No.1. If so its effect? OPD. 11. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court decreed the suit of the plaintiffs/respondents herein. In an appeal, preferred therefrom by the defendants/appellants before the learned First Appellate Court, the latter Court dismissed the appeal and affirmed the findings recorded by the learned trial Court. 7. Now the defendants/appellants herein, have instituted the instant Regular Second Appeal before this Court, wherein he assails the findings recorded in its impugned judgment and decree by the learned first Appellate Court. When the appeal came up for admission, on 28.02.2007, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. When the appeal came up for admission, on 28.02.2007, this Court, admitted the appeal instituted by the defendants/appellants against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the suit, out of which this appeal has arisen, was barred by time, especially when at least in the year 1984 deceased Sansaru, the donor, knew about the gift deed, as per recitals of the application to sue as an indigent person, which he filed in that year? 2. Whether the suit was barred by the principle of res-judicata? Substantial questions of Law No.1 and 2: 8. The learned senior counsel appearing for the defendants/appellants herein has with vigour contended before this Court, that with the donor instituting a previous suit/application seeking therein leave to sue as an indigent person, whereas, with the apposite application/suit comprised in Ex. D-5, standing dismissed in default, thereupon, the embargo of estoppel embodied in Order 9, Rule 9 of the Code of Civil Procedure against the institution of a fresh suit in respect of therewith analogous suit property hereat, stood attracted vis-a-vis the extant suit of the plaintiff, rather the only remedy available to the plaintiffs/respondents herein was to seek restoration of the application seeking leave of the Court concerned to sue as an indigent person besides to seek restoration of the suit, remedies whereof remaining unavailed by the donor, thereupon, the extant suit of the plaintiff/donor being reinforcingly barred by the principle of constructive res judicata. Also he alludes to the conclusive and binding judgments and decrees borne in Ex. D-6, recorded by the Civil Court in Civil Suit No.39/1 of 1988, decrees whereof stood affirmed in Civil Appeal No. 27 of 1990, wherein declaratory reliefs stood pronounced in respect of validity of the relevant gift deed impugned hereat, besides with the plaintiffs/respondents herein being also arrayed as co-defendants therein, to, espouse therefrom qua the principle of res judicata being rendered fortifylingly attracted in respect of the extant suit, whereupon, the plaintiff is barred to re-agitate the controversy in respect of validity of gift deed borne in Ex.DW2/B by hers/theirs reinstituting the instant suit. He has also proceeded to contend that with Ex.DW6/A holding revelations in respect of the donor accepting the validity of the gift deed also hence ousting her to, through the instant suit, re-agitate its valid execution. He has also proceeded to contend that with Ex.DW6/A holding revelations in respect of the donor accepting the validity of the gift deed also hence ousting her to, through the instant suit, re-agitate its valid execution. The crucible for determining the strength of the aforesaid submission rests upon the recitals borne in the registered deed of conveyance comprised in Ex.DW2/B, wherefrom it is to be fathomed qua its vesting absolute title or rights upon the donor in respect of the property borne therein or its vesting contingent right or imposing conditions subsequent upon the donee besides its enclosing therein any defeasance clauses, on infractions whereof occurring at any moment, inferences would stand garnered that on each moments of infractions of conditions subsequent or of evident transgressions of defeasance clauses incorporated therein, thereupon, legally permissible causes of actions accruing vis-a-vis the plaintiffs/respondents, dehors Ex.D-5, exhibit whereof comprises an application/suit seeking leave to sue as an indigent person, standing under Ex. D-4, hence, dismissed for default. In making the aforesaid fathomings, it is imperative to allude to the recitals borne in the gift deed borne on Ex.DW2/B, an allusion thereto, unfolds that thereunder the donor had made bestowment of the suit property upon the donee in lieu of services or in lieu of hers being maintained by the defendants/appellants herein. Occurrence of the aforesaid echoings in the gift deed, begets an inference that it did not make any absolute conveyance of the property borne therein vis-a-vis the donee rather it made contingent bestowments thereof upon him besides hence it embodied therein defeasance clauses or imposed conditions subsequent upon him. Evident infractions thereof, if any, at any moment arousing legally permissible causes of action vis-a-vis the plaintiffs/respondents. However, before proceedings to allude to the testification made by the defendant in respect of his not adhering to the conditions subsequent or qua his transgressing the defeasance clauses embodied in gift deed comprised in Ex. DW2/B, it is significant to allude to the mandate of Order 33, Rule 15 of the CPC, provisions whereof stand extracted hereinafter:- “15. However, before proceedings to allude to the testification made by the defendant in respect of his not adhering to the conditions subsequent or qua his transgressing the defeasance clauses embodied in gift deed comprised in Ex. DW2/B, it is significant to allude to the mandate of Order 33, Rule 15 of the CPC, provisions whereof stand extracted hereinafter:- “15. Refusal to allow applicant to sue as an indigent person to bar subsequent application of like nature.- An order refusing to allow the applicant to sue as an indigent person shall be a bar to any subsequent application of the like nature by him in respect of the same right to sue; but the applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right, provided that the plaint shall be rejected if he does not pay, either at the time of the institution of the suit or within such time thereafter as the court may allow, the costs (if any) incurred by the State Government and by the opposite party in opposing his application for leave to sue as an indigent person.” for therefrom garnering qua the tenacity held by the espousal made before this Court by the counsel, for the appellants, that the dismissal in default of the application/suit of the plaintiffs/respondents herein wherein he sought leave to sue as an indigent person, whereafter, his/hers yet not seeking its apt restoration, thereupon the suit of the plaintiff being barred by the principle of constructive res judicata. A closest reading of the mandate of Order 33, Rule 15 of the CPC, discloses that the mere dismissal of the apposite application, wherein she had sought leave of the Civil Court for suing as an indigent person per se, thereupon, not constituting any rigid statutory bar against the donor instituting a fresh suit in respect of analogous therewith subject matter borne herein. Consequently, even if under Ex.D-4, the application of the donor, wherein, he/she sought leave to sue as an indigent person hence stood dismissed in default, whereafter, he/she did not seek its restoration, yet thereupon his/her right to institute a fresh suit in respect of the subject matter borne in the previous suit, cannot, be forestalled nor hence the bar of the constructive res-judicata, is, attractable vis-a-vis the instant suit, preeminently when the extant suit has been valued for the purpose of court fee and jurisdiction and court fee of Rs.13/- stands affixed on the plaint. 9. Nowat the impact of the judgments rendered in Civil Suit No. 39/1 of 1988, verdict whereof is borne in Ex. D-6 and of the verdict concurrent therewith rendered in Civil Appeal No.27 of 2010, wherein pronouncements occur with respect to the validity of the gift deed borne in Ex. DW2/B also the impact of Ex. DW2/A, wherein she/he has admitted the validity of execution of gift deed, qua thereupon the extant suit of the plaintiff being barred, warrants is apt fathoming. However, as aforestated with the recitals borne in the gift deed making graphic disclosures in respect of, it, not creating any absolute indefeasible title in respect of the property borne therein vis-a-vis the donee, the defendants/appellants herein, rather it constituting therein a defeasance clauses also its imposing apposite conditions subsequent, comprised, in the defendants/appellants rendering services vis-a-vis the donor, recitals whereof when stand coagulated with the defendant in his testification, accepting his breaching conditions subsequent embodied in Ex.DW2/B, besides obviously his accepting his transgressing defeasance clauses occurring therein, thereupon, an inference is bolstered that at all moments of each of breach(es) or transgressions of the defeasance clauses embodied in Ex.DW2/B, thereupon, fresh legally permissible causes of action being vested vis-a-vis the donor, whereupon, the subsequently instituted extant suit, is not barred, dehors, the previous renditions borne in Ex. D-6, wherein a declaration occurs with respect to the validity of Ex. D-6, wherein a declaration occurs with respect to the validity of Ex. DW2/B, predominantly, when in the earlier renditions of the Civil Courts borne in Ex.D-6, there is no evidence qua the courts concerned pronouncing upon the trite relevant fact of gift deed, holding therein conditions subsequent or holding articulations qua defeasance clauses nor obviously also the aforestated exhibits pronounced upon the impact of infraction of conditions subsequent or of infraction of defeasance clauses or theirs diluting the efficacy of Ex.DW2/B. In aftermath, too hence the registered instrument of gift yet remaining intact for a challenge being thrown vis-a-vis its validity nor when the donor is not shown to depose therein in respect of apt breaches, of, conditions subsequent comprised therein, thereupon, this Court is constrained to conclude that none of the aforesaid exhibits operate as resjudicata for hence the plaintiffs/respondents herein being forestalled to institute the instant suit, preeminently, when evident breaches of conditions subsequent stand displayed. 10. Cumulatively with this Court concluding hereinabove that as and when breaches of conditions subsequent besides of defeasance clauses embodied in Ex.DW2/B, standing proven, thereupon legally permissible fresh causes of action accruing vis-a-vis the plaintiffs/respondent herein, whereupon, with the plaint making disclosures of the defendants/appellants herein making breaches of conditions subsequent, occurring in the gift deed comprised in Ex.DW2/B, whereafter with the donor promptly filing the extant suit, renders its reinstitution to fall within limitation, predominantly thereupon also disabling effects, if any, of all previous verdicts upon alike herewith suit property stand subsumed. 11. The above discussion unfolds the fact that the conclusions as arrived by the learned first Appellate Court as also by the learned trial Court are based upon a proper and mature appreciation of evidence on record. While rendering the findings, the learned first Appellate Court as well as the learned trial Court have not excluded germane and apposite material from consideration. Accordingly, the substantial questions of law are answered in favour of the plaintiffs/respondents and against the defendants/appellants. 12. In view of above discussion, the present Regular Second Appeal is dismissed. In sequel, the judgements and decrees rendered by both the learned Courts below are maintained and affirmed. All pending applications also stand disposed of. No order as to costs.