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2018 DIGILAW 841 (ALL)

Sutto v. Jhabbu

2018-04-06

DINESH KUMAR SINGH

body2018
JUDGMENT : 1. The present second appeal has been preferred by the appellant Smt. Sutto, against the impugned judgment and order dated 29.03.1982 passed by the Civil Judge, Unnao in First Appeal No.148 of 1979 whereby the suit filed by the plaintiff-appellant was dismissed and the judgment and decree dated 20.11.1979 passed by the learned Trial Court in Civil Suit No.164 of 1978 filed by the appellant was set aside. 2. There was earlier litigation between the same parties with respect to the same property. The earlier suit was filed by the respondent for a decree of possession against the appellant in respect of the same property which is the subject matter of the present appeal. In the plaint filed by the respondent, the boundaries of the properties were shown as:- East- Public through fare West-Tank North- House of Nakani South- House of Durga and Hannu 3. The respondent claimed that he is the absolute owner of the entire property on the basis of sale deed dated 15.10.1971 which was executed for a sum of Rs.950/-by Dabru, brother of the appellant. The claim of the appellant in the earlier suit was that her father gifted the open land to her on which she constructed the disputed house by her own funds and she was living in that house and the sale deed could not have been executed in respect of the said property in favour of the respondent herein. On the pleadings of the parties, the following issues were framed:- "(i) Whether the plaintiff is owner of a part of the house in question on the basis of succession being the legal heir of his deceased father? (ii)Whether the defendant unauthorizedly or forcibly has taken possession of the property in question? if yes, then whether he is liable to be evicted. (iii)Whether the judgment and order dated 30.05.1977 passed in Suit No.270 of 1972: Dabru vs Smt. Sutto by the Court of Ist Additional Munsif, Unnao in respect of the ownership of the defendant of the disputed property would be treated as final? if yes then its effect (iv) Whether the defendant is owner of property in question on the basis of sale deed dated 15.10.1971 executed by Dabru in his favour? (v) Whether the plaintiff had accepted the ownership of the defendant and the earlier suit No.270 of 1972: Dabru versus Smt. Sutto? if yes then its effect (iv) Whether the defendant is owner of property in question on the basis of sale deed dated 15.10.1971 executed by Dabru in his favour? (v) Whether the plaintiff had accepted the ownership of the defendant and the earlier suit No.270 of 1972: Dabru versus Smt. Sutto? If yes, then its effect (vi)What relief the plaintiff is entitled to?" 4. Thus, issue No.3 was framed with respect to the question of res judicata in respect of same property between the same parties. The learned Trial Court dismissed the suit of the respondent vide judgment and order dated 30.05.1977. It is admitted that the judgment and order dated 30.05.1979 had attained finality as it was not challenged by the respondent. It appears that thereafter the appellant was dispossessed and she filed the Suit No.164 of 1978 against the respondent. In the present suit also the boundaries of the disputed property were mentioned the same as that of the property mentioned in the earlier suit of 1972. The following issues were framed on the basis of pleadings of the parties and issue No.3 was specifically with respect to the question of res judicata with respect to the same property subject matter between the same parties. 5. The Trial Court held that the judgment and order in Suit No.270 of 1972 was effective and the rights of the parties had been finally determined by judgment and order dated 30.05.1977 passed by the Ist Additional Munsif, Unnao and operate as res judicata between the same parties on the same subject matter. 6. In view of the aforesaid finding, the suit of the present appeal was decreed by the learned Trial Court vide judgment and decree dated 20.11.1979. The respondent herein filed the first appeal against the said judgment and order passed by the Trial Court and the learned First Appellate Court has dismissed the suit of the appellant vide the impugned judgment and order on the ground that the sale-deed dated 15.10.1971 was in respect of portion of the property occupied by Dagru and it was not in respect of the whole of the property. The defence of the respondent was only sale deed dated 15.10.1971 in which the boundaries were clearly mentioned which showed that whole of the property. These boundaries were never got amended by moving an appropriate application before the Registrar or any competent authority. The defence of the respondent was only sale deed dated 15.10.1971 in which the boundaries were clearly mentioned which showed that whole of the property. These boundaries were never got amended by moving an appropriate application before the Registrar or any competent authority. The following substantial questions of law were framed by the order dated 20.12.2017:- "1. Whether the learned Civil Judge could hold the earlier decision passed in Suit No.270 of 1972 which had became final between the parties as bad for for ambiguity of the suit property and further held that for this reasons it has no binding effect in the present suit? 2. Whether the bar of res-judicata could be ignored by the appellate court on the ground of vagueness of the earlier decision? 3. Whether the learned Civil Judge could go behind the judgment and decree passed in Suit No.270 of 1972 in the present suit when clearly the point in issue in the present suit stood concluded by the earlier decision passed in the said Suit No.270 of 1972?" 7. Substantial questions as framed can be answered in the following manner:- The boundaries of the properties in the earlier suit of 1972 and the present suit No.164 of 1978 are one and the same. The respondent's claim was based on the sale deed 15.10.1971 which was not believed and his whole suit was dismissed vide order dated 30.05.1977. Once the rights of the parties with respect to the disputed land got determined and settled by judgment and decree of the competent court which attained finality inasmuch as it was not challenged, it was not open to the respondent herein again to assert his claim on the basis of the sale deed dated 15.10.1971 and contend that he bought half of the property on the share of Dagru and not whole of the property. In earlier suit he specifically claimed that he had bought entire property as mentioned in the plaint. The respondent is estopped to plead that he bought half of the property in the subsequent suit. He cannot change his stand in subsequent suit. It is not open to him to go on changing his stand with respect to the property and sale deeds particularly when he did not take any step to amend the sale deed once his claim on the basis of aforesaid sale-deed got dismissed. He cannot change his stand in subsequent suit. It is not open to him to go on changing his stand with respect to the property and sale deeds particularly when he did not take any step to amend the sale deed once his claim on the basis of aforesaid sale-deed got dismissed. Learned Appellate Court was wholly wrong and incorrect to rely on the sale deed and not treat the earlier judgment and res judicata and dismissed the suit of the appellant who was dispossessed by the respondent 8. Considering the aforesaid facts and law, the case is governed by principle of res judicata and, therefore, the judgment and order passed by the first appellate Court is hereby set aside. The judgment and decree passed by the trial court is affirmed. 9. The appeal is thus, allowed.