- (1.) THE circumstances that give rise to this second appeal may briefly be stated thus: - - Balu plaintiff instituted a suit against Chunya etc. defendants in the court of the Assistant Collector, Amber on 28.8.52 for recovery of possession over the land in dispute (Khasra Nos. 1941 to 1973 and 1976 to 1980, in all 31, measuring 15 bighas in village Bhanpur Kalan, Tehsil Jamua Ramgarh) and Rs. 100/ - as compensation. It was averred in the plaint that the plaintiff is the pattedar tenant of the land in dispute holding parcha chakbandi in his favour, that the defendants prevented the plaintiff from cultivating the land in Svt. 2004 whereupon the plaintiff brought a suit against them on 9 -8 47 for grant of a declaratory decree wherein a receiver was appointed of the land in dispute, that the plaintiffs declaratory suit was dismissed and the plaintiffs first appeal against the decree of the trial court was rejected by the Additional Commissioner, Jaipur, on 21.6.62, that after the decision of the appellate court the defendants tonk wrongful possession of the land in dispute on 1.7.52 and hence recovery of possession and compensation was prayed for. The suit was resisted on the ground that it was barred by res judicata that the defendants being tenants of the land in dispute were not liable to ejectment during the continuance of the Rajasthan (Protection of Tenants) Ordinance and that the land had always been in possession of the defendants. On behalf of the defendants Certified copies of the judgments of the trial court and appellate court in the original declaratory suit were produced in the case and the trial court held the present suit was barred by res judicata, The plaintiff went up in appeal before the learned Additional Commissioner who held that the suit was not so barred and therefore, the appellate court granted a decree for recovery of possession in favour of the plaintiff Hence this second appeal by the defendants.
(2.) WE have heard the counsel for the parties and have examined the record as well, The first point that comes up for determination in the case is as to whether the present suit is barred by res judicata or not. It is admitted by the parties that the Suit instituted by Balu in 1947 was between the same parties and related to the same land in dispute. As can be gathered from the judgment of the trial court dated 7.4.52, the plaintiff claimed in that case that he had been in possession of the land in dispute, that the defendants were interfering with his cultivation and hence it be declared that the plaintiff was the khatedar and pattedar tenant of the holding and the defendants had no right to interfere with his possession. The following issues were framed in that case: - - (1) Is the plaintiff in possession of the land in dispute ? (2) Are the defendants entitled to cultivate the land and not the plaintiff? It is unfortunate that no issue was framed on the point as to whether the plaintiff was not a pattedar or khatedar tenant of the land in dispute. In fact this was main issue in the case but appears to have been ignored for reasons which cannot be gathered from the judgment. As a result of the trial it was held by the trial court that the plaintiff was not in possession of the land in dispute. It may also be observed that the plaintiff did not led any documentary evidence in support of his claim, although it was alleged on his behalf that the parcha chakbandi of the land in dispute was in his name and that he had obtained pattedari rights on payment of nazrana. No parcha chakbandi or patta was produced by the plaintiff. Similarly an attempt was made to prove continuous possession by both the parties. The essential evidence on the point would have been entries in the gasht girdavari. However, no such document was ever produced. The trial court rejected the suit. The first appellate court confirmed the decree of the trial court. The learned Additional Commissioner was not clear if a declaration sought for by the plaintiff could be granted under sec. 102 of the Jaipur Tenancy Act. He also held that the plaintiff failed to prove the parcha chakbandi. An observation which has been relied upon by the lower appellate court in the present case is also to be found in that judgment which runs as follows: - - "Thirdly it is true that the defendant and his witness have stated that the field in dispute was handed over to the plaintiffs by the defendant some 4 or 5 years ago for cultivation, but all of them have stated that the field belongs to the defendant Chunya." With these observations this appeal was dismissed. On the basis of the observation quoted above, the learned Additional Commissioner has held that the finding of the trial court regarding failure of the plaintiff to prove his possession was reversed by the appellate court and hence no question of res judicata arises in the case. We find no basis for this assumption. In fact reading the judgment of the Additional Commissioner dated 21.6.52 as a whole, it would be clear that he practically endorsed all the findings of the appellate court and held that the plaintiff had failed to establish his case.
(3.) THIS would mean that the plaintiff had failed to establish his possession as claimed in the plaint. The line of reasoning adopted by the learned Additional Commissioner in the judgment under appeal is therefore, clearly untenable. However, this by itself would not determine the question posed at the commencement of this paragraph. As laid down in sec. 11 C.P.C. no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties and has been heard and finally decided by the court. As laid down in Explanation III, the matter above referred to must in the former suit have been alleged by one party and either expressly or impliedly by the other. The plaintiff in the previous suit had clearly alleged that he was the khatedar tenant of the land in dispute, had paid nazrana and had obtained pattedari rights and was in possession. All these allegations were denied by the defendants. Hence in spite of the fact that no specific issue was framed by the trial court on the point as to whether the plaintiff was a khatedar or a pattedar tenant or not, it will be held that the question was directly and substantially in issue in the previous suit and was decided against the plaintiff. It is, therefore, not open to the plaintiff in the present suit to agitate that question again and it must be deemed to have been determined finally between the parties that; the plaintiff is not the Khatedar and pattedar tenant The plaintiff in the previous suit claimed Khatedari and pattedari rights for himself alleging the defendants to be the trespassers in wrongful possession, This point was determined against the plaintiff. It is therefore, not open to the plaintiff to agitate that question again. He cannot be allowed to allege that the defendants are trespassers or that they have taken wrongful possession July, 1952, from the plaintiff inasmuch as it had been decided in the previous suit that the plaintiff was not in possession in 1949 and the plaintiff never alleged in the present suit that he ever acquired possession after termination of the previous suit including the first appeal as well. We are, therefore, clearly of the opinion that the present suit is barred by res judicata. We would, therefore, allow this appeal, set aside the order of the lower appellate court and restore that of the trial court whereby the plaintiffs suit was dismissed.;