AJODHYA KOERI Vs. RAM SUNDER TEWARI

JUDGEMENT

(1.) THE sole point raised in this appeal is whether the plaintiff-respondent was, because of a previous judgment, estopped from contesting that the whole of the consideration mentioned in the deed in his favour had passed It appears that the plaintiff respondent obtained two sale-deeds of certain property from the defendant. Some time later the defendant's sons brought a suit to recover bask possession of the property sold to the plaintiff on the ground that the sales were not for family necessity. That suit succeeded. It may be mentioned here that the present defendant, the father, was no party to that litigation. THE present suit was thereupon brought by the plaintiff-respondent for refund of the consideration which he had paid for those sales against the defendant-appellant, his vendor. Amongst other pleas the defendant pleaded that the whole of the consideration had not been paid and, therefore, the plaintiff was not entitled to claim bask the whole amount entered in the deeds from the defendant. He also contended that the finding in the suit brought by the sons against the present plaintiff that the whole consideration had not passed operated as res judicata against the plaintiff's present claim for the whole of the consideration money. Both the Courts below have repelled these contentions and have decreed the plaintiff's claim in full. THE defendant comes here in second appeal, and his first plea is that because of the decision in the previous suit that the whole of the consideration had not been paid by the plaintiff, the Courts below were wrong in deciding otherwise in this suit. This contention cannot prevail. THE defendant-appellant was no party to the previous litigation and any decision therein would not be binding as res judicata between him and the present plaintiff and, therefore, the Courts below had the right to enter into the evidence and decide on the evidence before them whether the whole consideration had passed or rot. Having done so, they had decided the question in favour of the plaintiff-respondent. This finding is a finding of fact behind which we cannot go in second appeal. This appeal, therefore, must be dismissed with costs including in this Court fees on the higher scale.