Mahinder Kumar & Ors. v. Bal Kishan & Ors.

1. This Regular First Appeal under Section 96 of the Code of Civil Procedure 1908 (CPC) is filed by the plaintiffs in the suit impugning the Judgment of the trial court dated 01.12.2016 by which the trial court has dismissed the suit for partition filed by the appellants/plaintiffs as being barred by res judicata in view of the 2019:DHC:267 judgment dated 09.09.1969 passed by a ld. Single Judge of this Court in CS(OS) No. 510/1966 and an appeal against this judgment was also dismissed by a Division Bench of this Court vide Judgment dated 20.01.2009 in RFA (OS) 24/1970.

2. Since the trial court by the impugned judgment dismissed the suit as barred by res judicata, and what is res judicata is provided under Section 11 CPC, this provision is reproduced as under:- "11. Res judicata - 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." (Underlining Added)

3. When we read the provision of Section 11 CPC, it is found that the doctrine of res judicata becomes applicable only when in the earlier suit parties are found to be litigating under the same title which is also the same title in the subsequently instituted suit. Res judicata, therefore, applies with respect to a cause of action claiming right in a property i.e. on a particular title, and this particular title and cause of action is also the basis of a subsequent suit. For example, if a suit for partition is filed by the son against the mother pleading that the father had gifted the property to him, and if this suit is dismissed on the ground that the gift deed was not registered, then that does not mean that a son cannot file a subsequent suit against the mother claiming title in the same property but on a different ground and cause of action that the father had left behind a will in favour of the son as regards the same property and hence, the son is the owner of the property. Claiming title to the property on the basis of a gift deed is a separate title and cause of action than claiming title and cause of action to a property on the basis of a will, and therefore, a subsequently instituted suit claiming title on the basis of a will cannot be held to be res judicata simply because the property is the same. 4(i). In the present suit, the cause the cause of action is that the suit property being property no. 2730/1, Chowk Raiji, Roshanpura, Nai Sarak, Delhi-110006 was purchased jointly by a Sale Deed by three brothers, namely, Sh. Lachman Pershad, Sh. Ulfat Ram and Sh. Bhagwat Kishore. Though the date of the Sale Deed is not mentioned in the plaint, counsel for the appellants/plaintiffs have filed before this Court a certified copy of this Sale Deed dated 22.06.1952. In terms of this Sale Deed dated 22.06.1952, the suit property has been purchased jointly by the three brothers, namely, Sh. Lachman Pershad, Sh. Ulfat Ram and Sh. Bhagwat Kishore. Appellants/plaintiffs are the legal heirs of Sh. Bhagwat Kishore and the respondents/defendants are the legal heirs of the Sh. Lachman Pershad and Sh. Ulfat Ram. Therefore essentially the suit is a suit for partition between the three branches of Sh. Lachman Pershad, Sh. Ulfat Ram and Sh. Bhagwat Kishore, and this partition suit is predicated as per equal ownership under the Sale Deed dated 22.06.1952. 4(ii). The earlier suit filed for the suit property which was decided in terms of the Judgment dated 09.09.1969 was based on a different title and cause of action that the suit property was a coparcenary property i.e. an HUF property. It is this plea and cause of action that the suit property is an HUF property which was rejected by the Judgment dated 09.09.1969 in CS (OS) No. 510/1966 which was upheld by the Division Bench of this Court vide its Judgment dated 20.01.2009 in RFA (OS) 24/1970. The earlier suit, therefore, did not decide the issue of the claim of partition of the suit property on the ground of equal ownership between the three brothers, Sh. Lachman Pershad, Sh. Ulfat Ram and Sh. Bhagwat Kishore on the basis of coownership in terms of the Sale Deed dated 22.06.1952 and this title and cause of action in the present suit to the suit property is wholly absent in the earlier suit CS (OS) No. 510/1966. Since the present suit is based on the different title/claim of equal co-ownership, as per the Sale Deed dated 22.06.1952, and a title to the suit property is not claimed as a co-owner in the suit property because of being a coparcener of an HUF, the present suit title and cause of action is hence a separate cause of action than the title/cause of action which was subject matter of the decision in the earlier suit CS (OS) NO. 510/1966 decided on 09.09.1969, and therefore, the Judgment dated 09.09.1969 cannot operate as res judicata to bar the present suit. Accordingly, the trial court has erred in dismissing the present suit as barred by res judicata.

5. In view of the aforesaid discussion, this appeal is allowed with costs of Rs. 20,000/- as the appellants/plaintiffs have been forced to file this appeal as it was the respondents/defendants who got the issue framed in the suit of the suit being barred by res judicata and this issue has been wrongly decided against the appellants/plaintiffs by the impugned judgment. The costs be paid within a period of six weeks from today. The costs will be paid by the legal heirs of Sh. Lachman Pershad, who are defendant nos. 1 to 9 in the suit and the respondent nos. 1 to 9 in this appeal. Since the impugned judgment is set aside, the trial court will now decide the suit in accordance with law as the suit was dismissed only on a preliminary issue i.e. before other issues were framed and also before parties had led evidence. All pending applications, if any, are also disposed of.

6. Parties to appear before the District and Sessions Judge, Central District, Tis Hazari Courts, Delhi on 8th February, 2019 and the District and Sessions Judge will now mark the suit for disposal to a competent court in accordance with law.

JANUARY 15, 2019 VALMIKI J. MEHTA, J AK