Decided on May 14,1960

SONIYA Respondents


- (1.)THIS is the defendants' second appeal against an appellate decision of the learned Additional Commissioner, Jaipur dated 18. 6. 1958 whereby he remanded the case to the trial court for trying all the issues involved in the suit and decide it on merits, the trial court having dismissed the suit on the ground of res-judicata which formed the subject matter of issue No. (3 ). The facts giving rise to this litigation between the parties may be stated in a narrow-compass.
(2.)SONIYA one of the opposite party in the present appeal had earlier filed a suit in the court of the Sub-Divisional Officer, Tonk for redemption of the suit land alleged to have been mortgaged to the applicant. One of the important issues involved in that suit was whether the land in question was ever mortgaged. The trial court and the first appellate court came to different findings and in a second appeal the Board of Revenue proceeded to examine whether or not the factum of mortgage was proved. After discussing the oral and documentary evidence produced by the parties, the learned Bench came to the conclusion that the finding of the trial court about the existence of the alleged mortgage was entirely based on surmises and was not established by cogent evidence and therefore the suit filed by SONIYA for redemption of land and re-delivery of possession was dismissed on 29. 6. 56. About three months after this final decision SONIYA along with his brother Ganga Bishen again filed a suit against the present appellant in the court of the Assistant Collector, Tonk for a declaration of their status as Khatedari tenants and ejectment of the appellant as trespasser under sec. 88 and 183 respectively of the Rajasthan Tenancy Act. The averments in the plaint were that the respondent's father Onkar was the khatedar of the said land, that in Smt. 92 he mortgaged the land to the father of the appellant for a consideration of Rs. 50/-, that the appellant's father continued to cultivate the land after the death of Onkar, the father of the respondents, that mutation in the revenue papers was made in the name of the appellant who also succeeded in obtaining a Parcha Chakbandi in Smt. 1998 in an unlawful manner due to the ignorance of the respondents, that having come to know all these fraudulent activities of the appellant, the defendants had filed a suit against them which was however dismissed by the Board of Revenue on the ground that the plaintiff-respondent failed to prove the factum of mortgage. It was urged in the present suit that as the plaintiff respondent were the khatedars of the suit land and the possession of the appellants was that of a trespasser, a declaration as to their status as well as ejectment of the appellants as trespassers be decreed. . The respondent appellant resisted the suit and among other grounds pleaded that the present suit was barred by res-judicata. The trial court framed as many as eight issues out of which issue No. (6) was whether the present suit was hit by the principle of res-judicata and therefore not maintainable. The trial court decided this issue against the plaintiff-respondents and dismissed the suit. In appeal the learned Additional Commissioner observed that the previous suit was filed only by SONIYA and that the present suit was instituted by both SONIYA and Gangabishen and therefore the earlier decision in the case could not operate as res-judicata against Gangabishen who was not a party to the proceedings then. It also thought that the trial court should have tried the other issues as well. Accordingly the appeal was allowed and the impugned order remanding the case to the trial court was given. The contention of the learned counsel for the appellant is that in his statement recorded on 17. 12. 54 in the earlier suit between the parties, SONIYA had stated that he was the eldest son of his father and had been managing the suit-land on his behalf and on behalf of his other brothers (out of which Gangabishen was one) who lived jointly with him, as head of the family. This fact according to the learned counsel for the appellant shows that the previous suit was filed by SONIYA in a representative capacity as head of the family and whatever decision was given finally by the Board of Revenue in that suit was binding on SONIYA and his other brothers including Gangabishen who figured now as a co-plaintiffs with SONIYA. The submission was that as in the previous suit and the present suit, the parties were the same, the subject matter of the dispute in both the suits being directly and substantially in issue had been already determined by a competent court and the parties have been litigating under the same title, the present Suit was barred by the principle of res-judicata. As against this the learned counsel for the respondent urged that the previous suit was a suit for redemption of an alleged mortgage and the present suit was based on a different cause of action namely for the ejectment of a trespasser and for recovery of possession on the basis of a different title and therefore the decision in the previous suit could not operate as a res-judicata. In support of this he relied on AIR 1931 Oudh, 263, wherein it was held that "a claim for possession of property as owner and as mortgage are essentially different matters. They cannot have the same origin. They are wholly different rights in the plaintiff. Where suit brought for recovery of possession of the property on the ground that the plaintiff was the proprietor was dismissed and another suit was brought by the plaintiff as mortgagor for redemption of the said property the decision in the prior suit cannot operate as res-judicata because the matter involved in the two is essentially different". . It was further held that "in order to constitute a matter res-judicata, the following conditions must concur : (1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit. (2) The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. (3) The parties as aforesaid must have litigated under the same title in the former suit. (4) The court which decided the former suit must have been a court competent to try the subsequent suit or the suit in which such issue is subsequently raised. (5) The matter directly and substantially in issue in the. subsequent suit must have been beard and finally decided by the Court in the first suit. In the light of the above authority, we have examined the pleading and the issues framed in both the cases. So far as condition No. (2) is concerned we are fully satisfied on the basis of the statement of SONIYA himself made in the prior suit that the litigation in both the suits was between the same parties or between parties under whom they stood in both the claims. Similarly condition No. (4) is also fulfilled because the present suit as well as the former suit were both triable by the court of a Sub-Divisional Officer. Conditions Nos. (1), (3) and (5), however do not appear to* be fulfilled. The former suit was for redemption of a mortgage and re-delivery of possession and the present suit was a suit for ejectment against the same defendant as a trespasser. It is, therefore, clear that the matter involved in the previous suit was essentially different from that involved in the present suit for ejectment and the decision in the previous suit, even if it was between the same parties, could not therefore operate as res-judicata in the present suit. The relative rights, and duties of owner and trespasser on the one hand and of mortgagor and mortgagee on the other are wholly different and arise from different causes of action and cannot have the same origin. AIR 1931 Oudh page 264 which followed AIR 1925 Oudh page 273 and AIR 1929 Lahore page 833 and (1911) 35 Bombay 507 relied upon by the learned counsel for the respondent support this view.
In the circumstances we are of the opinion that the decision given by the trial court is not maintainable and an order of remand given by the lower appellate court directing the trial and disposal of the case on all the issues framed by the court is fully justified.

Accordingly the appeal shall stand dismissed. .


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