:'^1:; ^SI ^^ w :..^tHEi£lS^ »Ti<GWl i'E^i^^sii^i*^ :^: ^S.A.iJS^^ .5111^0^1 ^ ^m %' •6^ [^PEKUA^rT'; ;.;M^INmi:y/: "tESgO®iE^NTS^ ^OEEEI^^TS1 ^|^^|^|B8i^o.,!N<iIui^<3|pi^^^^ ^.l|5£^^^^,^^a!ttiia^ ;!|^N?il£a^^ll;13tstt.^gii^^^(3^^ ^Nl@^:.:;.'-.l.'lll:}:-';1.::2;ril:,^^ ^Myl:f':^Bm^^ ,J,<tgid^,atX)GEfr^y^z^^i^i^;;i^ ^l^^^.1 f;ISh3^^<lhan^ ^^e<3:about^fyea^i;'';^> ll^^ll^^iysiiafll^i-^1.^1^^^ -j^^^al5^.30;yeai^^,^^<:':l'l,|^^.:^^^ i|i-a|nlia.t|SiNd^^s^.tIMt8;^^ i;li^ll^^tl(^^t1S^mrs,j ^ ^*.'...'.^*'.'. '•.' .. .:• .4»' 11 . ^ ^ '.'^<./r ; !.•''. .^. . .' . ;'-.".' •.•••: •;'^''^"-::V':W^"..:~ ^ •.^:'^~.':.-'^'"-.::'^ •-..•::—.:^'1 ^ ^. "•^"•'.- •'".••.r^: ..•\:'.':'.^:;' l?l^^iill£^:^'';^:l^^^^ $^- :i:^em^'^g^;a^^J^a^||:|J;i|i ?'^ria^..<Kui^.''Vemta^^1^^^^^^^^ ^^emia,^|Age(t^at)0ut.,i4.^|a^|j!: Re$p. No. tt^ ^s^u^^mstfc^sui^.ip.^is^ ],]^.;-l,'^&)faal3a'|^tNpaj^.:^ jBistfc^at gt^^^.:Y,; ,aECX? .AI^! i.lE3Nl3KRtsi^i^^^ :;^Ki^^ElG013E!:?;;l:;l^.l.!:.ll-:l;'r:.^ K^ •r^^^^ —s ^ -A HIGH COURT OF CHHATTISGARH AT BILASPUR Sinate Bench: Hon'ble Shri Justice Prashant Kumar Mishra APPEUAMT R6SPONOENTS Second Apoeal No.91 / 2005 Latti Bai Versus Bandhan Ram and othere. Shri Manoj Paranjpe, counsel fbrthe appetlant. SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE ORALORDER (18.08.2010) Heard. (2) This Is plaintiffs second appeal under Section 100^of C.P.C. Her suit was for declaration of title and ateo for declaration that the registerect sale deed dated 01-03-1978 executed by Sahadan Ram and Bandhan Ram in favour of defendants No. 5 & 6 is null and void and the said defendante do not acquire right, tftle or interest by virtue of the said sate-deed. The plaintiff also prayed for a permanent injunction to restrain defendants No. 5 & 6 from interfering in her possession over the suit property. (3) Case of the piaintiff is that the sutt property eariier belonged to the famity of Sahadan Ram includtng his father. The defendant Nos.1 to 4 namety Bandhan Ram, Shyam Chand, Shsvshankar and Bramha Shankar have sold the property to the plamtiff by registered saie-deed dated 22-05-1990 anct as such she is in possession of the property by virtue of the sate-deed. tt was stated that she is in peaceful possession since 1973 along with her famlly membere. However, the defendants No. 5 & 6 are trying to dispossess her by saying that they .^SKSS, 'L^ -^L- have purchase the property from Sahsrclan Ram and Bandhan Ram (defendant No.1) for whom Sahadan Ram acted as guardian while executing sale deed. According to the plaintiff Sahadan Ram was never the owner of the property and had no right to execute the sate-deed in favour of defendants No. 5 & 6 and that in any case Sahadan Ram coutct not have execut^i the sale-deed on behalf of Bandhan Ram because he had not obtained any permission from Civil Gourt as requsred under the Hindu Minority and Guardianship Act, 1956. The present defendant No.1 Bandhan Ram and defendant No.2 to 4 are sons of tate Sahadan Ram. Defendants No. 5 & 6 are the purchaser from Sa^adan Ram and Bandhan Ram by virtue of sale-deed dated 01-03-1978. (4) tt was the case of the defendants No. 5 & 6 that ptaintiff's husband Radheshyam was in illegal possession of the suit property, therefore the defendants No. 5 & 6 instituted a suit for possesslon and mense proflt against Radheshyam, which was decreed by the trial Court In Civit Suit No. 11-A/79 by juc^ment and decree dated 24-07-1981. The first appeat fited by Radheshyam in the Court of District Judge, Ambikapur was dismissed by judgment and decree dated 01-04-1989 anct thereafter Radheshyam preferred second appeal before the High Court of Madhya Pradesh bearing Second Appeal No. 206/1989 whlch came to be dismlssed by judgment and decree dated 04-05-1990. (5) Accorciing to these defendants their title vls-^-vis Radheshyam in eartier suit has been decided and thus the present suit Is barred /24) '^a^.l -g s '3. under the principle of res-jucticata and that the suft is ateo barred by (imitation. (6)^ The Courts below have dismissed the suit after recording findings on the pretiminary issue regarding maintainabitity of the suit under the prindpte of res-judicarta and belng barred by limitation. (7) Counsel for the appetlant has argued that in the eariier suft the present piaintlff was not a party. The suit was institutecl against her husband in which late Sahadan Ram was also not a party. The eartier suit was fHed by the present ctefendants No. 5 & 6 SunU Kumar Verma and Vinay Kumar Verma without impleading Sahadan Ram or in any case the present ptaintiff was not impleaded. (8) According to the leamed counsel for the appellant nerther the partles of both the suits were same not they were litigating under the same titte therefore the principtes of res-judicata would not be applicable and the Courts below have committed a serious error of law andjurisctiction. (9) On a perusat of the judgment and decree dated 24-07-1981 passed in the earlier suit it woutd be revealed that an specific issue No. 1 (A) and 1(B) was framed to the effect as to whether the plaintiffs / present defendants No. 5 & 6 have purchased the property by sale- deed dated 01-03-1978 and whether the vendor Sahadan Ram and Bancthan Ram had the authority to execute the sale-deed. Both the issues have been decided In favour of the piaintiffs of that suft / k defendants No. 5 & 6 of present suit. In Second Appeal No. 206/1989 "^; S'J ^ Hlgh Court of Madhya Pradesh formulated the substantiat question of law in the fotlowjng manner:- "Whether the pfamtiffs-respondente proved thefr We to e siift house by virtue of the safe-deed dstted 01-03-1978 executed by Sahadan Ram and Bandhan RQm?" The High Court decided this substantiat question of law against Radheshyam, the husband of ttie present plaintiff. (10) it would thus be found that the title of the present defendants No. 5 & 6, who were the platntiffs in the eariier sust has been establtehed in the earlier sult. (11) The questton now to be considered is whether the parties were tlttgatlng under the same title. The present plaintiff is the purchaser from Bandhan Ram and sons of Sahactan Ram. The earlier sale-deed in favour of defenctants No. 5 & 6 was executed by Sahadan Ram for hlmseif and as guardian of Bandhan Ram. Thus the title acquired by defendants No. 5 & 6 from Sahsdan Ram and Bandhan Ram being an in the earder sutt, woulct ateo be an issue of the present suft Inasmuch as if the sate-cteed executed by Sahadan Ram and Bandhan Ram have been found to be proved, nothing would remain for Bandhan Ram and sons of SahacSan Ram to pass it on to the present plaintiff. In thls manner it te found that the plaintiff ctaiming through the sons of Sahadan Ram is litsgating under the same title vis-^-vis the plaintiffe ot the eariier suit who were ctaiming through the sate-deed executed by Sahadan Ram himself and for Bandhan Ram. Had it been a case ^that wthout executlng a sate-deed the defendant No.1 preferred a suit ^^ ^' chaltenging the sale-deed executed by Sahadan Ram as his guardian wtthout seeking permission from Civil Court, the matter would be dlfferent. Again had it been the case that the suit was preferred by the sons of Sahadan Ram chatlenging the authority of their father to execute the sale-deed, the matter would be different. In either case Bandhan Ram as welt as the sons of Sahadan Ram would have been required to fl(e a suit within three years after getting majority however the present is not a sult by them. (12) Leamed counset for the appellant has relied on judgment by the Supreme Gourt in the case of Williams vs. Lwsrvlusamy and another reported in A/R 2006 SC 2212 to argue that the principtes of resjudlcQta are not appticable in the present case. He has ateo relied on judgment of Thavasiya vs. Pidu reported In 2000(i) MPWN 17 to argue that when the titlgating parties are not the same the principte of resjudlcata is not applicabte. (13) Having consictered the judgments this Court would find that the said judgments have no applteation in the present case inasmuch as in the case in hand the earlter round of (itigation traveted up to High Court and one specific substantial question of law was framed and decided agalnst the husband of the pr^ent plaintiff. As found eartier, the tftle acquired by the defendants No. 5 & 6 from Sahactan Ram and Bandhan Ram was an issue in the eartier sutt and the same was found to be proved in favour of defendants No.5 & 6. If that be so the present ptatntiff who has purchaseci the tand from Bandhan Ram and sons of Sahadan Ram is ijtigating under the tile acquired from the said sellers and the title of defendant No.5 & 6 acqulred for Sahactan Ram and ^^\ ^z n, i, '•- te?^ -(.- Bandhan Ram has already been proved. Thus, the plaintiff is litigating under the same title through the sons of Sahadan Ram and Bandhan Ram. (14) In view of above, this Court does not find any iUegaltty committed by the Courts below in dismissing the suit on the ground that it is bared by res-judicata. No substantial question of (aw arises fbr determinatlon in this appeat. The instant appeal fails sind Is hereby dismissed. Sd/- Prashant Kumar Mishra Judge )<^