BHONRA Vs. SARVAN

JUDGEMENT

(1.) This second appeal has been filed by the defendant against an appellate decree of the Additional Commissioner, Jaipur, upholding the decree of the trial court whereby the respondent^ suit for recovery of possession over the land in dispute was decreed against the appellant.

(2.) The respondent did not put in appearance despite notice and hence the appeal was heard ex parte. The first contention raised by the learned counsel for the appellant is that the suit stands barred by res Judicata. Much need not be sa -?d on the point It is clear from the record that this plea was not raised before the trial court. No issue was framed on the point nor was any evidence whatsoever led by either party. In the first appellate court this point was included in the memorandum of appeal, but as can be gathered from the judgment of the lower appellate court it was not pressed at the time of arguments and consequently nothing is to be found in the judgment of the lower court on this point. A. I. R. 1918 Patna 526 (2) has been relied on in support of the contention that the plea of res judicata can be entertained even in second appeal. This case is clearly distinguishable from the present one. In that case the judgments and decrees of the previous case were filed and marked as exhibits in the trial court. The plea of res judicata was raised in the first appellate court which entertained it and decided the same. In the present case, as pointed out above no copy of the plaint or the judgment or the decree of the previous suit was filed nor was the plea ever raised before the first appellate court at the time of the arguments. Where the material on record is sufficient for the determination of the plea it can be raised in first appellate court and also in the second appellate court. But where there exists no such material there can be no justification for allowing this plea to be raised at such a belated stage.

(3.) Another contention of the appellant is that the respondent did not claim himself to be the tenant of the land in dispute. This too is untenable. Para No. 2 of the plaint makes it clear that the respondent claimed himself to be a tenant of the land in dispute. There is thus no substance in this appeal which is hereby rejected.