- (1.) Leave granted. This appeal has been preferred against the judgment and order dated 31st January, 2012 passed by the High Court of Madhya Pradesh, Bench at Gwalior in Second Appeal No.135/1994 whereby the Second Appeal of the appellant was dismissed by the High Court, by holding that the suit is not barred by the principle of res judicata, which was the main plea of the appellant -defendant in the suit.
(2.) The respondent -plaintiff filed suit for possession stating that the plaintiff was the owner of the suit property by virtue of sale deed dated 24th May, 1972 executed in his favour by the defendant and that the appellant -defendant had forcibly dispossessed the plaintiff in September, 1983. The stand of the appellant -defendant in contesting the suit was that an earlier suit No. 105 A of 76 on the same cause of action was dismissed by the trial court on 21 st February, 1981 against which appeal was dismissed on 16th July, 1985 and the present suit was filed thereafter on 3rd October, 1985 which was barred by res judicata. The trial court vide judgment and decree dated 29th September, 1992 upheld this plea and dismissed the suit. It was held: - "The documents produced on behalf of plaintiff Ex.P -2 copy of statement of Mohammad Khan, Ex. D -1 judgment dated 16 -7 -1985 of appellate court and on perusal of sale deed Ex.P -1 and pleading it is undisputed that on the basis of this sale deed Ex.P -1 the plaintiff has filed suit for declaration of title, possession and permanent injunction against Mohammad Khan with regard to disputed land of survey No.136/137 having total area of 4.139 hects before the Court of Civil Judge Class -I, Basoda which has been dismissed on merits. As such under section 11 of CPC principle resjudicata will be applicable."
(3.) The respondent preferred an appeal on which the appellate court reversed the finding as follows : - "In my opinion the objection taken by plaintiff/appellant with regard to applicability of principle of resjudicata is definitely considerable and for consideration of this principle, definitely defendant was required to produce certified copy of plaint, written statement, plaint issue and judgment of Civil Suit No.105 -A/76 so that relief claimed in Civil Suit No.105 -A/76 and relief claimed in this suit could have been known minutely. From the facts mentioned in judgment of appeal, Ex.D -1 produced before learned court below it appears that plaintiff has pleaded that by sale deed the plaintiff has purchased land of survey No.137 and some land of Survey No.136, in this manner including both purchased 10 bigha of land and obtained possession and by mistake in sale deed in place of Khasra No.137 it was written 136 and on Khasra No.137, the defendant has taken possession in Mar'75. Hence in sale deed dated 24 -5 -72 in place of Khasra No.136, Khasra No.137 be amended and possession and mesne profit may also be allowed. When in present suit, the relief claimed is that out of land of Survey No.136 -18 bigha 13 biswa, plaintiff has purchased 10 bigha of land on which defendant has taken possession in Sep'83, hence possession be restored. Hence on minutely reading both the suits it clearly appears that civil suit No.105 -A/76 submitted was related to land of Survey No.137 and to amend Survey No.137 in place of Survey No.136 in sale deed and for obtaining possession when this suit is related to 10 bigha land of Survey No.136. In such circumstances when defendant No.1 in Civil Suit No.105 -A/76 has admitted that he has sold an area of 10 bigha of Survey No.136 and delivered possession as such subject matter in both the suit is different directly and indirectly. To know this difference the learned court below has not minutely read the same and as such finding given is not correct. Hence it is clear, that in the light of judgment passed in Civil Suit No.105 -A/86 principle of resjudicata in present case is not applicable and arguments made by counsel of appellant/plaintiff is correct and arguments of counsel of defendant No.1/respondent No.1 is not correct." ;