Decided on August 27,1999

SUNDER Respondents


- (1.) THIS civil second appeal u/s 100 of the CPC arises out of concurrent finding of fact recorded by the lower appellate court of Addl. District Judge, Ramban. Facts giving rise to the appeal are these. The appellant instituted a suit for declaration that his mother Mst. Buban after the death of his father had re -married one Krishan. Out of her 2nd wedlock she gave birth to respondents Sunder and Faqir Chand. After the death of Krishan, his estate developed upon Sunder, Faqir Chand and Mst. Buban in equal shares. Since the appellant is son of Mst. Buban from her first husband, therefore, he was entitled to equal share in the estate of his mother alongwith Sunder and Faqir Chand. The suit was resisted by the legal heirs of Mst. Durgi on the ground that Krishan was married only to Mst. Chuhi and out of this wedlock Mst. Durgi was born. During her life time Mst. Durgi instituted against respondents Sunder and Faqir Chand besides others claiming to be daughters of Krishan out of the wedlock from his wife Mst. Chuhi. This suit was decreed by the court of Sub -Judge, Ramban on 12.3.85 holding her to be the sole heir of Krishan. In this earlier suit one of the issues was whether respondents Sunder and Faqir Chand were the sons of Krishan from his marriage with Mst. Buban. This issue was decided holding that marriage of Mst. Buban with Krishan was not proved. Incidentally appellant had appeared as a witness in the earlier suit on behalf of the respondents Sunder and Faqir Chand. The appeal filed against the judgment of Sub -Judge, Ramban dated 12.3.65 was dismissed by the District Judge, Bhaderwah on 19.6.69. A civil second appeal was dismissed by this court on 3.3.75. Respondents Sunder and Faqir Chand filed LPA No. 1 of 1975. Letters Patent Bench while summarising the facts from the pleadings and judgment returned observed as under: - "Krishan and Rupa were two brothers who were sons of one Gursari. Likewise Mst. Chuhi and Mst. Buban were also two sisters. Mst. Chuhi was married to Rupa whereas Mst. Buban was married to Mohar Singh. Rupa is alleged to have died some 40 years before the institution of the suit out of which this appeal has arisen. The plaintiffs case is that on Rupas death Mst. Chuhi married his brother Krishan and a daughter namely, Mst. Durgi was born out of the said wedlock. Mohar Singh is also stated to have died sometime in the year 1966 -67 Samvat. Mst. Buban after the death of her husband, Mohar Singh, admittedly gave birth to two sons namely, Sunder and Faqir Chand, who are appellants before us. Mst. Chuhi and her daughter Mst. Durgi brought a suit in the trial court for possession of some land belonging to Krishan on the allegation that Chuhi was legally wedded wife of Krishan whereas Durgi was her daughter and that the defendants, namely, Sunder and Faqir Chand who were Just strangers were in possession of the estate left by Krishan without any right or title. The case of Sunder and Faqir Chand on the other hand was that their mother Mst. Buban, after Mohan Singhs death had remarried Krishan in Chader Andazi form according to the custom prevalent in the Illaqa and accordingly mutation of the estate of Krishan was also attested in their favour and they were in possession of his estate as his sons...."
(2.) IT is admitted case of the parties that the finding of the trial court that Mst. Buban was never married to Krishan whereas Mst. Chuhi had married his was upheld by the first appellate court in the first appeal as well as second appeal and finally it was also held that Mst. Durgi was born to Mst. Chuhi out of her wedlock with Krishan. It was also found that Mst. Buban gave birth to respondents Sunder and Faqir Chand after the death of her first husband, but their parentage could not be established.
(3.) IT is on the basis of these judgments in the previous suit that the trial court as well as first appellate court dismissed the suit filed by the plaintiff -appellant. This appeal was admitted to hearing for the determination of following substantial questions of law: - "1. Whether in the facts and circumstances of the present case, the decree passed against the appellant by the trial court and confirmed by the appellate court is in accordance with law? 2. Whether the judgment in a previous suit to which the plaintiff was not a party nor he claims the property through a party in litigation is binding on him within the meaning of Section 40 of the Evidence Act? 3. Whether in a suit for possession of land the determination of the question of paternity of a party to the same is a judgment in re., even when the court is not exercising matrimonial jurisdiction? The contention of Mr. Kotwal appearing for the appellant is that the finding of both the courts below that decree passed in the suit brought by Mst. Durgi against Sunder and Faqir Chand operates as res judicata is erroneous because the appellant was not a party to the suit, merely because he appeared as a witness for these two respondents who were defendants in the previous suit, he could not be deemed to be a party to the proceedings. He further argued that paternity of the respondents Sunder and Faqir Chand could be established only by the District court exercising powers under Hindu Marriage Act and not in a contemporaneous proceedings.;

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