MOHAMAD MIR Vs. GHULAM MOHI-UDDIN AND OTHERS
LAWS(J&K)-2006-7-27
HIGH COURT OF JAMMU AND KASHMIR
Decided on July 23,2006

Mohamad Mir Appellant
VERSUS
Ghulam Mohi-Uddin And Others Respondents

JUDGEMENT

- (1.) Asad Siraj and Nabir Siraj owned a house in moiety. It is found by both the Courts below that Asad Siraj was in possession of the southern portion of the house and Nabir Siraj had the other Side in his possession. By a sale deed dated 15th Phagon 1999, Asad Siraj sold his share to one Mohd. Mir. Nabir Siraj owed some money to the Co-operative Bank and in pursuance of a decree passed against him, his half share in the house was sold during the execution proceedings to Ghulam Mohi-uD/- in respondent in this appeal On 18th Chet 1999 the Nazir gave symbolic possession to Ghulam Mohiud-Din of that portion, of the house which was sold to Mohd. Mir and was in his possession. Mohd. Mir made an application under O. 21, R. 99, Civil P.C. to the executing Court, but was unsuccessful, with the result that he brought a suit under O. 21, R. 103. Civil P.C. The trial Court of Second Addl. Munsiff, Srinagar, found that there had taken place a private partition between Asad Siraj and Nabir Siraj and that Asad Siraj had sold that portion of the house which had gone to him as a result of the partition. The learned Munsiff has further found that Mohd. Mir was in possession of the property when its symbolic possession was given to Ghulam Mohi-uD/- in, the respondent in the present appeal Ghulam Mohiud-Din preferred an appeal against this decree of the learned Second Addl. Munsiff to the Court of the Senior Sub-Judge Srinagar. The learned Senior Sub-Judge recorded a finding against partition having taken place between Asad Sira and Nabir Sira, but nevertheless found in favour of Mohd. Mir respondent in that appeal. He dismissed the appeal and confirmed the decree of the trial Court. Against this decree of the Senior Sub-Judge Mohd. Mir has come up in second appeal to this Court.
(2.) It may be noted that the decree passed by the Senior Sub-Judge is in favour of Mohd. Mir and the question is as to whether Mohd. Mir is competent to attack a decree which is wholly in his favour. It has been held in - '3 J and K LR 186' (A) -a case decided by the Hon'ble Board of Judicial Advisers - that "a successful party may appeal against the decree if the finding of the Court, on which the decree is based, can operate as 'res judicata' between him and the other party in any future litigation."
(3.) Now in the present case it would be seen that the decree passed by the Senior Sub-Judge is based not on that finding which is this time sought to be challenged by the appellant. True, that the learned Senior Sub-Judge has found that the partition is not proved but the decree, is not based on that finding. It may be stated that a matter even though directly in issue in Suit will not operate as 'res judicata' in a subsequent suit, unless it was substantially in issue in the former suit, which means that the issue must have been of importance and value for the decision of the case. An unnecessary issue cannot be said to be of any importance or value for the decision of the suit. Chitaley in his commentary on the Civil P.C. has enunciated the law on the subject in the following words : "Where a decree is one of dismissal in favour of the defendant but there is an adverse finding against him on one point, a plea of 'res judicata' cannot be founded upon that decision; because the defendant having succeeded on the other plea, had no occasion to go further as to the finding against him." In fact a perusal of the judgment of the learned Senior Sub-Judge would show that his finding a regards the partition was not at all necessary for passing the decree, and as such that finding cannot be treated as 'res judicata'. Such being the case, the appeal that has been preferred by the successful party Mohd. Mir is not at all competent. The appeal is therefore dismissed with costs.;


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