J.M. Tandon, J. - (1.) THE following pedigree -table, about which there is no dispute will be helpful in understanding the facts of the case : - - JUDGEMENT_19_LAWS(P&H)4_1979.htm Harnam Singh and Amrik Singh sons of Boor Singh along with Sarasti Devi and Janak, widow and daughter respectively of Balbir Singh, filed a suit for partition against Balwant Singh, Shivjit Singh and Jasjit Singh sons of Harbans Singh, Karam Singh son of Boor Singh, and Dalip Singh son of Rattan Singh alleging that their common ancestor Dewan Singh owned a house known as "Haveli Dewan Singh Wall" at Phagwara. The plaintiffs (now respondents) alongwith Karam Singh defendant had one fourth share in it. Similarly, Dalip Singh, Lakhbir Singh and the line of Gurdit Singh represented by Balwant Singh, Shivjit Singh and Jasjit Singh had one fourth share each. Lakhbir Singh gifted his one fourth share to Amrik Singh vide gift deed dated January 29, 1964 Amrik Singh thus became entitled to five sixteenth share in the Haveli. Harnam Singh continued to own one sixteenth share and so did Sarasti Devi and Janak plaintiffs. The share of Karam Singh was one sixteenth while that of Balwant Singh, Shivjit Singh and Jasjit Singh one fourth and of Dalip Singh one forth. The plaintiffs respondents prayed that the Haveli be partitioned in accordance with their shares The suit was contested by Balwant Singh, defendant, now dead and represented by the appellants. He denied that Harbans Singh had any share in the property because he had been adopted by his maternal grand -father Amin Chand. He also denied the share of Lakhbir Singh because the latter's father Kapur Singh had relinquished his share in his (Balwant Singh) favour in lieu of some outstanding debts. He revealed that Boor Singh predecessor in interest of the plaintiffs had filed a suit for partition in 1983 Bk. and the matter was referred for arbitration. The Arbitrator gave the award which was made the rule of the Court on 19th September, 1987 Bk. The plaintiffs (now respondents) had, therefore, no right to get the property partitioned once again. Dalip Singh In his separate written statement also averred about the previous litigation and raised some objections The trial Court framed the following issues ; - - 1. Whether the suit is not maintainable on the principles of res -judicata ? 2. WHETHER the plaintiffs are estopped from suing by their act and conduct? Whether Lakhbir Singh is a necessary party ? 3. WHETHER the defendants Nos. 2 and 3 are neither necessary nor proper parties ? 4. WHAT are the shares of the parties in the property in dispute ?
(2.) ISSUES Nos. 3 and 4 were decided against the defendants and the remaining issues in favour of the plaintiff's respondents. The trial Court thereupon passed a preliminary decree on December 11, 1968, in favour of the plaintiffs respondents. Balwant Singh filed an appeal. He died during the pendency of that appeal. The present appellants were impleaded as his legal representatives. The learned District Judge, Kapurthala, vide his order dated May 22, 1974, confirmed the trial Court decree in favour of the plaintiffs -respondents and dismissed the appeal. It is against this order that the present regular second appeal is directed.
(3.) THE main contest between the parties is about the effect of the previous litigation. The contention of the learned counsel for the appellants is that Boor Singh had filed a suit for partition of the joint property, including the Haveli, and during the pendency thereof the matter was referred to an Arbitrator, who gave the award which was made the rule of the Court. In view of this, the present suit filed by the plaintiffs respondents is barred by the principles of res judicata. The argument of the learned counsel for the plaintiffs respondents is that the previous decree passed is no decree in the eye of law and it cannot operate as res judicata to defeat the present suit. The learned District Judge held the award given by the Arbitrator in the previous litigation bad and ignored the decree passed on its basis on the grounds that Harbans Singh who also owned a share in the property had not joined in making the reference and Amrik Singh was minor and while making a reference on his behalf permission of the Court had not been obtained.;