RAKESH KUMAR GARG, J. - (1.) PLAINTIFF -appellant filed a suit seeking declaration to the effect that she is the exclusive owner of the property in dispute as described in the head note of the plaint, with a consequential relief of permanent injunction restraining defendant -respondent No.1 from getting the house partitioned in pursuance of an ex -parte decree dated 21.12.1977 passed in Civil Suit No.174 of 1977 titled as 'Dina Nath v. Raj Kumar and others'.
(2.) CLAIM of the appellant is that the house in question was an evacuee property. It was firstly allotted to Munshi Ram and was transferred to him in lieu of his verified claim, the compensation of which was to be adjusted towards its reserve price and the balance was to be paid in instalments. Munish Ram Dogra failed to pay the instalments as per the terms of the agreement/allotment letter resulting into cancellation of transfer in his favour and accordingly the house was auctioned on 19.12.1979. Bid of the plaintiff being highest was accepted and she paid the bid amount on 11.03.1980 and thereafter, the department issued sale certificate in her favour on 22.04.1980. It was further averred that on the death of Munshi Ram, defendant No.1 being his heir filed a Civil Suit for possession by means of partition of the house in equal shares being Civil Suit No.174 of 1977 and in that suit the plaintiff as well as her brother Raj Kumar appeared but thereafter absented resulting into passing of the preliminary decree on 21.12.1977. In execution of this preliminary decree, the defendants made a prayer for partition of the house by metes and bounds through a Local Commissioner. The plaintiff requested the defendants to abstain from partition as it was no longer the property of Munshi Ram Dogra under whom the defendants were claiming their rights over the suit property. However, the defendants declined to accept the request and rather threatened to get the house partitioned. Hence, the necessity arose to file the instant suit. Upon notice, defendant No.1 appeared and denied the averments made in the suit. However, it was admitted that evacuee property was allotted to the ancestors of the parties and its price was also paid. It was stated that on allotment it ceases to be the evacuee property. It was denied that any agreement was executed by Munshi Ram, who was paying the instalments in time. It was further denied that the said allotment/transfer in his favour was cancelled. Auction of the house on 19.12.1979 in favour of the plaintiff was also denied. It was also averred that the Civil Suit No.174 of 1977 was pending at the time when alleged auction had taken place. However, it was admitted that the Civil Suit for partition was filed and ex -parte proceedings were taken against the plaintiff on account of her non appearance. Her application for setting aside the ex -parte proceedings was also dismissed and no appeal was filed against the said judgment and decree, which has become final and even the final partition has been effected and final decree has been passed in terms of the report of the Local Commissioner and thus, the instant suit was barred by principle of res -judicata and the provisions of Order II Rule 2 CPC and therefore, the plaintiff was estopped from alleging that the property in dispute belongs to her exclusively and she was not entitled to any relief. From the pleadings of the parties, the following issues were framed by the trial Court: 1) Whether the plaintiff is the sole owner of the property in question? OPP 2) Whether the decree in partition suit is nullity as claimed by the plaintiff? OPP 3) Whether the suit is hit by the provisions of O -2 R -2 CPC? OPD 4) Whether the suit is barred by the principle of resjudicata? OPD 5) Whether the suit is properly valued for the purposes of Court fee and jurisdiction? OPP 6) Whether the plaintiff is entitled to the declaration prayed for? OPP 7) Relief.
(3.) BOTH the parties adduced oral as well as documentary evidence in support of their respective pleas. The trial Court vide judgment and decree dated 06.09.1984 dismissed the suit holding that the plaintiff was not the exclusive owner of the property in dispute and that the suit was barred by the principle of res -judicata and the provisions of Order II Rule 2 CPC, and the decree for partition passed in Civil Suit No.174 of 1977 was not a nullity. Aggrieved from the aforesaid judgment and decree of the trial Court, the plaintiff filed an appeal before the first appellate Court, which was also dismissed vide judgment and decree dated 22.02.1986. While dismissing the appeal, the first appellate Court held that the transfer of property in favour of Munshi Ram could not have been cancelled and the property could not have been put to auction and sold in favour of the appellant and thus, she never became owner of the suit property and Munshi Ram was not owner of the property.;