- (1.) S. K. Phaujdar, J. The appeal was ad mitted on 22-10-1984 on four substantial questions of law as follows: (1) When a suit for possession stands dismissed for default and an application under Order IX, Rule 9 also stands dis missed, whether a subsequent suit for the same relief in respect of the same property was maintainable; (2) Whether a partition deed which is not duly stamped and is not registered could be read as evidence; (3) When a question of title is decided in respect of a property in a former suit between the father of the plaintiff and others, whether in a subsequent suit a court can again decide the question of title in respect of the same property contrary to the judgment in the former suit; and (4) Whether a suit for possession on the ground of trespass is maintainable at the instance of one co- owner without impleading the other co-owner as a party. The learned counsel for the appellant, however, pressed the points of bar of sub sequent suit under Order IX, Rule 9 and of the admissibility of the partition paper.
(2.) A suit, numbered 54 of 1975, was initiated by Hari Babu (Present respondent No. 1) against Harbhajan Singh (present appellant) and others. The prayer in the suit was for posses sion of the suit premises after evicting the defendants and for damages for their illegal occupation thereof. The suit-property, ac cording to the plaint, belonged to Mangat Ram, father of Hari Babu, Mangat Ram made a partition of his properties amongst his sons and the suit- property fell in the share of Hari Babu. One Tek Chand was inducted in the suit property as a tenant by Mangat Ram and this Tek Chand had al lowed the present appellant, Harbhajan Singh, to stay there as a sub-tenant. Mangat Ram filed a suit against Tek Chand in O. S. No. 578 of 1977. The defendant Harbhajan contested the suit claiming to be a trespasser in the house. The suit was dis missed for default. Subsequently, this suit was filed impleading Harbhajan as a trespasser and claiming damages at the rate of Rs. 100 per month for his illegal occupa tion. The suit was contested by Harbhajan Singh but the ownership of Mangat Ram or Hari Bhu on the suit property was denied. It was stated that the suit No. 578 of 1977 was filed in collusion between Tek Chand and Mangat Ram. The plaintiff intentionally failed to appear in that suit and it was dis missed for default. Accordingly, the present suit was said to be barred under Order IX, Rule 9, C. P. C. It was further stated that in Civil Appeal No. 241 of 1965 it was decided that Laja Mangat Ram was not the owner of the suit-property and the present suit, therefore, was not maintainable wherein a claim of ownership of Mangat Ram was ad vanced.
(3.) THE trial court received evidence and heard the parties and decided that the suit property was owned by the plaintiffs and the present suit was not barred under Order IX, Rule 9 and he decreed the suit of the plaintiff in toto on 21-3-1980. In the First Appeal No. 102 of 1980 the decree of the trial court was maintained by the judgment dated 2-8-1984. It was held by the first appellate court that the plaintiff could succeed to prove his ownership on the property. It was reasoned by him that even if )r the sake of argument the partition papers were not to be acted upon for lack of registration, that would not help the defen dants as a co- owner could alone maintain a suit for eviction of a trespasser. It was held that the assessment of damages at the rate of Rs. 100 was proper. In the appeal, the defen dants laid stress on the judgment in Civil Appeal No. 241 of 1965 but the court found that in that judgment Lala Mangat Ram was found to be the pattedar (settlee) for the suit-property. On the question of applica tion of Order IX, Rule 9, CPC to bar the present suit, the court found that the former suit was filed by Mangat Ram against Tek Chand for realisation of arrears of rent and for dispossession. In that suit, the present appellant was described as a trespasser and, accordingly, the court of first appeal was of the view that the causes of action in the suits were different and the bar of Order IX, Rule 9 would not be applicable here.;