Decided on March 18,1997

AMI CHAND Appellant
KRISHNI DEVI Respondents


Kamlesh Sharma, J. - (1.)-This appeal under Section 100, C.P.C. is directed against the decree and judgment dated 22.8.1989. passed by-Additional District Judge, Bilaspur, whereby the appeal of respondents-defendants No. 1 to 3 was accepted and decree and judgment dated 21.8.1985 passed by Sub-Judge 1st Class, Ghumarwin was set aside and the suit of the appellants-plaintiffs was dismissed holding it barred under the principle of res judicata. The Sub-Judge 1st Class had decreed the suit of the appellants-plaintiffs for possession of the land in dispute comprised in Khasra No. .413, measuring 8-6 big has situated at Mauza Sandhyar, Pargana Sunhani, Tehsil Ghumarwin, District Bilaspur, rejecting the defence of the respondents-defendants No. 1 to 3 that they are in possession of the land in dispute as tenants.
(2.)This case has a chequered history. In the earlier suit filed by predecessor-in-interest of appellants-plaintiffs against Babu Ram, father and predecessor-in-interest of respondents- defendants No. 1 to 3. Sub-Judge 1st Class, Ghumarwin, by his judgment dated 31.5.1979, Ext. D.W-1/A. District Bilaspur had returned the plaint under Order 7, Rule 10 for filing the same before the Collector holding that Civil Court had no jurisdiction. The issue of jurisdiction was decided as preliminary issue on the basis of pleadings of the parties without holding any trial. Thereafter, the predecessor-in-interest of appellants-plaintiff's presented the plaint in the Court of Assistant Collector 1st Grade, Ghumarwin, District Bilaspur, who with constrained to pass an order for the reason that he had no jurisdiction as under sub-section (5) of Section 58 of Himachal Pradesh Tenancy and Land Reforms Act, "it was the Collector who could entertain such a case. The order dated 22nd. April, 1981 of Assistant Collector 1st Grade, Ghumarwin, District Bilaspur, is on record as Ext P.C.
(3.)Instead of either approaching the Collector or the higher revenue authorities to challenge the order Ext. P.C., the appellants-plaintiffs filed Civil Suit in the Court of Sub-Judge 1st Class, Ghumarwin out of which the present appeal has arisen. The suit was tried on all the issues including the issue that it was barred by principle of res-judicata which was answered in negative holding that in the judgment Ext. D.W. 1/A the matter, which is directly and substantially in issue, that the respondents-defendants were tenants of appellants-plaintiffs, was not decided by it. These findings have been upset by the District Judge by placing reliance on the judgment of Supreme Court in Avtar Singh & Ors. v. Jagjit Singh & Anr., hence the present appeal.

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