- (1.) THIS Second Appeal, preferred un der Section 100 of the Code of Civil Pro cedure, 1908, is directed against the judgment and order dated 15-12-1992, passed by III Additional District Judge, Dehradun, in Civil Appeal No. 10 of 1992, whereby the judgment and decree dated 10-12-1991, passed by the trial court (Civil Judge, Dehradun), in Origi nal Suit No. 534 of 1990, dismissing the suit, is affirmed.
(2.) HEARD learned counsel for the parties and perused the lower court record. Brief facts of the case are that one C. A. Wilson transferred the property in suit, known as 'joy Villa, in Village Jakhan, Rajpur Road, Dehradun, vide registered sale deed dated 18-05-1948 in the name of Baroo Mai (father of de fendant No. 1 Jagat Prasad) and Inder Sain (uncle of defendant No. 1 Jagat Prasad ). In a Suit No. 150/57, instituted by Punjab and Sindh Bank Ltd. against Baroo Mal and Inder Sain, a decree for recovery of loan was passed and when aforesaid property was sought to be auc tioned by the decree holder (Punjab and Sindh Bank), after making payment of the decretal amount, the property was got saved. Thereafter, Suit No. 370 of 1984 was filed by Radha Kishan, son of Baroo Mai (now defendant) for partition of aforesaid property against defendant No. 1 Jagat Prasad and others, in which present plaintiff Devi Prasad was also a co-defendant. The said suit was dis missed by the trial court (Civil Judge, Dehradun) vide its judgment and order dated 0/-03-1989 with the finding that the sale deed dated 13-05-1948 executed in favour of Baroo Mal and Inder Sain was a benami transaction, which was got executed by Jagdish Prasad (defend ant No. 1 ). Thereafter, Suit No. 534 / 1990 (from which this appeal has arisen) was instituted by Devi Prasad (son of Inder Sain) for partition of the aforesaid property claiming l/6th share in the property. Defendant No. 1 Jagat Prasad (since deceased) the main contesting de fendant, in his written statement, has de nied the plaint allegations and pleaded that plaintiff has no share in the prop erty in suit. In the additional pleas it is stated that sale deed executed in the year 1948 by Mr. C. A. Wilson transfer ring the property in suit in the name of Baroo Mai and Inder Sain was a benami transaction and it was defendant No. 1, who infact, paid the consideration and purchased the property. It is further pleaded by this defendant that it is the defendant No. 1, who paid all the taxes of the property in suit and spent money in maintaining the property. It is further pleaded by defendant Jagat Prasad that when the property was set to be auc tioned in the decree passed in favour of Punjab and Sindh Bank in suit of 1957, it was this answering defendant, who paid the decretal amount and got re leased the property from attachment. It is further pleaded that name of answer ing defendant Jagat Prasad was entered as owner in the Municipal record in which property in suit is shown as prop erty No. 163. /1, Rajpur Road, Dehradun. A legal plea is also raised by defendant No. 1 in his written statement that the suit is barred by principal of res judicata, as the rights between the par ties has been finally determind in a de cree passed in Original Suit No. 370 of 1984. In the written statement of de fendant No. 2 Smt. Dayawati also, it is pleaded that the owner of the property in suit was only defendant No. 1 Jagat Prasad and none else. The share of the plaintiff is denied by this defendant. However, Radha Kishan (defendant No. 5), Sushil Kumar (defendant No. 6) and Jai Prakash (defendant No. 10) filed their joint written statement, in which most of the allegations in the plaint are admitted. It is also admitted by these three defendants that plaintiff has l/6th share in the property.
(3.) THE trial court framed issue No. 1, as under : Whether suit is barred under Section 11 of the Code of Civil Procedure, on the basis of principle of res judicata, as alleged in the written statement of defendant No. 1 ? The above issue was decided by the trial court in affirmative vide its or der dated 10-12-1991, holding that the suit is barred by principle of res judicata. The trial court by said order rejected the plaint under Order VII Rule 11 of Code of Civil Procedure. Aggrieved by said judgment and decree, passed by the trial court, Civil Appeal No. 10 of 1992 was preferred by the plaintiff Devi Prasad, son of late Baroo Mai, before the District Judge, Dehradun. Said ap peal appears to have been transferred to the court of III Additional District Judge, Dehradun, who after hearing the parties, dismissed the appeal vide its impugned judgment and order dated 15-12-1992, upholding the order passed by the trial court that the suit is barred by principle of res judicata. Hence, this Second Ap peal was filed by the plaintiff before the Allahabad High Court on 13-04-1993. The appeal was admitted by said Court on 15-04-1993. The appeal is received by transfer to this Court, under Section 35 of the U. P. Re-organization Act, 2000, for its disposal.;