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2020 DIGILAW 565 (MP)

Ramsatav And Another v. Sahodra Bai

2020-05-13

NANDITA DUBEY

body2020
JUDGMENT 1. This second appeal by plaintiffs/appellants is directed against the judgment and decree dated 28.02.2005 passed in Civil Appeal No.24- A/2005 by District Judge, Balaghat District Balaghat arising out of judgment and decree dated 04.09.2003 passed in Civil Suit No.2-A/2002 by Civil Judge, Class-2, Baihar, District Balaghat. 2. By the instant suit, the plaintiff has sought a declaration that Sahodra Bai is not the daughter of Pathe @ Bhujwal and had no right to bring the suit for partition and the judgment and decree passed in favour of defendant Sahodra Bai in Civil Suit No.10 A/1991 is not binding on them and further for permanent injunction to restrain the defendant No.1 Sahodra Bai from interfering in the possession. It was pleaded that the defendant No.2 and 3 and late Pathe @ Bhujwal had earlier sold 12.6 acres of the land from the suit property to plaintiff and others. It was further pleaded that defendant No.2 and 3 sold 8.06 acres of land to the plaintiffs whereas late Pathe who died issueless had sold his entire share in the suit property to the plaintiffs and since then plaintiffs are in exclusive possession of the suit property. 3. It is undisputed that the suit property belonged to one 'Jhadu' who died on 25.08.1956. Jhadu had three sons Ramswaroop/defendant No.2, Pathe @ Bhujwal (since deceased) and Umesh Singh/defendant No.3 who had no issue. The plaintiffs are the sons of defendant No.2 Ramswaroop. Earlier on 08.02.1991, the defendant No.1 Sahodra Bai filed a Civil Suit No. 10 A/1991 against the defendant No.2 and 3 seeking partition and possession of the suit land. The said suit was resisted on the ground that Sahodra Bai is not the daughter of Pathe @ Bhujwal. The said suit was however decreed in the favour of defendant No.1 Sohadra Bai holding that she is a daughter of Pathe @ Bhujwal. The aforestated judgment and decree in favour of Sahodra Bai was challenged by Ramswaroop and Ummed by way of First Appeal No.58 A/1998 and the same was dismissed on 08.01.1999. 4. The further case of the plaintiffs was that in the said Civil Suit No.2A/2002, the written statement filed by defendant No.2 and 3 (herein) on 24.04.1991 was signed by only defendant No.2 and not by defendant No.3. 4. The further case of the plaintiffs was that in the said Civil Suit No.2A/2002, the written statement filed by defendant No.2 and 3 (herein) on 24.04.1991 was signed by only defendant No.2 and not by defendant No.3. It was further stated that defendant No.2 was illiterate and of feeble mind, hence could not prosecute the case properly, hence the decree was passed against them. Defendant No.1 Sahodra Bai despite having knowledge that the land has been purchased by the plaintiff had not made them a party to the said civil suit, hence the judgment and decree passed (herein) is not binding on them. 5. In the written statement filed by the defendant No.1 Sahodra Bai, it was contended that earlier suit was regarding partition and possession of the ancestral land. As defendant No.2 father of the plaintiff was already a party to the said suit, it was not necessary to array the present plaintiffs as parties. It was further contended that the sale deed was bogus and fradulantly executed without consideration during the pendency of the earlier civil suit. The information in this regard was given to the Assistant Registrar Baihar, despite that the said deed was registered. It was contended that as the same was done during the pendency of the Civil Suit No.10 A/1991, it was not binding on the defendants. 6. On the basis of the pleadings of the parties the trial Court framed as many as six issues. After appreciation of the evidence on record, the trial Court recorded a finding that the plaintiff are not the owner and/or in possession of the suit property nor entitled to the decree of permanent injunction. It was further held that the judgment and decree in Civil Suit No.10 A/1991 is binding on the plaintiffs. However, the trial Court found that the suit is not barred by principle of resjudicata as plaintiff was not a party to the previous suit. 7. Aggrieved by the judgment and decree dated 04.09.2003 the plaintiffs preferred the first appeal. The appellant Court after reappreciation of the entire evidence on record dismissed the first appeal holding that the suit filed by the plaintiff is barred by principle of resjudicata . 8. Having heard the learned counsel for the appellants at length and on perusal of record, I am of the opinion that this appeal deserves to be dismissed. 9. The contention of Ms. 8. Having heard the learned counsel for the appellants at length and on perusal of record, I am of the opinion that this appeal deserves to be dismissed. 9. The contention of Ms. C.V. Rao, learned counsel appearing for the appellants that the principles of resjudicata is not applicable has no substance. Section 11 of CPC provides that 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, or between 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. 10. It is evident from Exh.D/4 to Exh.D/7 that the suit property was ancestral and the earlier suit was filed by defendant No.1 Sohadra Bai against the defendant No.2 and 3 (herein) alleging that she had a share in the ancestral property and the ancestral land. The said suit was decreed holding that Sahodra Bai was the daughter of late Pathe @ Bhujwal and is entitled to share in the suit property. The decision in the First Appeal No.5 A/98 was not challenged any further by the defendant No.2 and 3, hence, the finding that Sahodra Bai had 1/3 share in the suit property had attained finality. It is evident that the plaintiffs are claiming their rights through their father Ramswaroop who was a party to the earlier suit regarding the same subject matter and the issue in the present suit was directly and substantially the issue in the former suit. It is also pertinent to note that the sale deed on the basis of which the plaintiffs claimed title to the suit property have not been produced by them in the present case. 11. In view of the aforesaid I do not find any illegality or perversity in the finding recorded by the appellate Court warranting any interference of this Court in the second appeal. 12. No substantial question of law arises for consideration. 13. Resultantly, the second appeal stands dismissed in limine .