- (1.) THIS is an appeal against an appellate decision of the Additional Commissioner, Jaipur, dated 17-5-1955 reversing the decision of the trial court and holding the appellant's suit to be barred by the general principles of res judicata.
(2.) WE have heard the learned counsel appearing for the parties and have examined the record as well. The validity of the lower appellate court's Judgment has been challenged before us only on two grounds, the first is that the parties in the present suit are different from those in the previous proceedings under the Rajasthan (Protection of Tenants) Ordinance. The other is that the point which is directly and substantially in issue in the present suit is entirely different from the previous proceedings. WE have carefully examined both these contentions and feel no hesitation in observing that there is no substance in either of them. As for the first it may be observed that the application for reinstatement under sec. 7 of the Ordinance was presented by Sheobux against Kesar Devi, Rasal Devi and others. The present suit was instituted by Kesar Devi, in her own right and as guardian for her minor son Nand Singh. The appellant's contention is that Nand Singh was not party in the previous proceedings under the Ordinance and hence the principles of res judicata should not be held applicable. It has been replied on behalf of the opposite party that Nand Singh was effectively and properly represented by her mother Kesar Devi in the R. P. T. O. proceedings and hence the parties are the same. On behalf of the appellant reliance is placed on A. I. R. 1922 Allahabad 217. This case is clearly distinguishable from the present one. In that case the de facto guardian of a minor entered into a compromise by which substantial rights of the minor were given up to the plaintiffs, who the guardian should have known had no manner of right thereto. It was held that the inference that the compromise was obtained improperly was almost irresistible. There is no suggestion in the present case that Kesar Devi did not properly contest the R. P. T. O. case or acted collusively or fraudulently. As can be gathered from the judgment of that case, it was a hotly contested one. A. I. R. 1947 Allahabad 168 and A. I. R. 1929 Patna 741 have been cited on behalf of the respondent. In the Patna case it was laid down that it was not necessary that the managing member must be mentioned as a party in that capacity expressly, "all that is required is to see whether he effectively represents the family having regard to all the circumstances of the case. " In the Allahabad case it was observed (hat a decree passed against the father or a manager of a Hindu family unless it is vitiated by fraud or unless the son establishes that his interest were not properly safeguarded must be held to be res judicata against the other members of the family. As observed above, in the R. P. T. O. case Mst. Kesar Devi was clearly impleaded as the opposite party and the allegations against her were that she had obtained the wrongfull possession over the land after dispossession Sheobux. Kesar Devi resisted this claim. There is absolutely nothing on the record to show that she did not take adequate steps to safeguard the interest of the minor or that she had any interests adverse to those of the minor. Thus it is clear to our minds that Nand Singh minor was effectively represented through her mother in the R. P. T. O. case. As regards the order contention we may observe that the suit is governed by item7of the third schedule of Rajasthan Tenancy Act, 1955. Sec. 90 of the Act corresponding to sec. 160 of the Jaipur State Grants Land Tenures Act, 1947, runs as follows : - "suit for declaration of land as khudkasht : - When land claimed by a tenant as his holding or as being under his cultivation is also claimed by a landholder as his khudkasht, such tenant or landholder may sue for a declaration of his status. " Clearly as the express phraseology of this section connotes if a tenant first seeks a declaration of his status it would amount to a decision that an estate-holder cannot be held as having the land in his khudkasht if the land in dispute is within the tenancy of a tenant. It cannot be held as khudkasht by the landholder as both the positions are diametrically opposed to each other. If one is true the other must be false and vice versa. Any matter which might and ought to have been made ground of deference or attack in the former suit shall be deemed to have been a matter directly and substantially in issue in the subsequent suit as well as laid down in explanation IV, sec. 11 C. P. C. It was open to the appellants to contest the claim for re-instatement on the ground that the land was under their khudkasht. If they did not raise that ground they have to thank themselves for that but nevertheless it shall be deemed to have been decided against them. There is thus no substance in this appeal which is hereby rejected. .;