M6f IN THE HIGH COURT OF CHHATTISGARH AT BILASPUR S.A. N0. f^[ /2006 Ife APPELLANT ^PLAINTIFF RESPONDENTS Defendants ^ ,.^^ '^ ^^ \p ^.Haricharan, S/o Jain Mangal aged about 65 years, ,R/o Village Gurmuti, P.S. Basantpur, Tahsil Wadrafnagar, Distt. Sarguja (C.G.) VERSUS :J.. Dudhnath, S/o Jaimangal, Aged about 70 years, ^. Ram Lakhan, S/o Dudhnath Aged about 45 years, 3^ Heera Lal, S/o Dudhnath Aged about 40 years, 4. Mohan S/o Dudhnath aged about 34 years, All R/o Village Gurmufi, P.S.Basantpur, Tahsil Wadrafnagar Distt. Sarguja (C.G.) 5. State of Chhattisgarh /' Through Collector Sarguja (C.G.) SECOND APPEAL U/S.^foO OF THE CODE OF CIVIL PROCEDURE 3)./ HIGH COURT OF CHHATT1SGARH. BILASPUR SECONDAPPEAL N0.174/2006 Haricharan Vs. Dudhnath and others Appearance: Shri D.N. Prajapati, counsel for the Appellant. ORDER (22.6.2006) SUN1L KUMAR SINHA. J (1) This is the plaintiffs second appeal u/s 100 of the Code of Civjl Procedure, who lost in both the courts. The appeal is directed against the judgment and decree dated 28.2.2006 passed in Civil Appeal No.9-A/ 2005 by the 2nd Addl. District Judge (F.T.C), Ramanujganj, Distt. Sarguja, arising out of judgment dated 25.3.1998 passed in Civil Suit No.20-A/1996 bythe Cjvil Judge, Class-l, Ramanujganj. (2) The brief facts are that the plaintiff filed a suit for declaratjon of title, partjtion and separate possession in relation to the lands described jn Schedule-A of the plaint. He intera/ia pleaded that the suit Jands of Schedule-A were the joint property among the plaintiff and defendants. This property was purchased in an auction sale by the defendant no.1 on 24.5.2006 but the consideration of sale was paid out of the earnings of the joint family. He further pleaded that thereafter, tfiere was a partitjon in their family and certain lands of Schedule-A were allotted in the share of the plaintiff. He also pleaded that in the year 1978, when the defendants tried to interfere with the possession of the plaintiff in his absolute property, which was allotted to his share in the said partition, the plaintify filed a suit for permanent injunctionwhjch was dismissed and thereafter, an appeal against the said judgment and decree was also dismissed on 16th February 1996 and then only the defendants again took over the possession of the said lands. This gave rise to a cause of action to the plaintiff to file the instant suit for the above refief(s). ^^ 2- (3) The defendants filed their written statement denying the contentions of the plaintiff. It was pleaded by them that the suit lands were the self-acquired property of defendant no.1 as the defendant no.1 alone had purchased the same in the said auction sale and the consideration of the sale was also paid by him out of his own earnings. They further pleaded that an earlier civil suit bearing no.10-A/1986 on almost similar grounds was filed by the plaintiff, which was dismissed by the trial Court on 23.2.1988 and thereaiter an appeal against the said judgment and decree was also dismissed and in this manner, the said judgment and decree became final and the present suit is barred by principles of res-judicata. (4) The learned trial Judge framed various issues in this case and took the issue no.3 as preliminary jssue. This jssue was dedded in favour of the defendants holding that the plaintiffs suit was barred by the principles of constructive res judicata as almost similar pojnts were raised in the earlier civil suit which was dismissed by the judgment and decree, referred to above. Being aggrieved with the said judgment passed by the trial Court, the plaintjff filed an appeal before the lower appeal court. The lower appellate Court also took the same view and confirmed the judgment passed by the trial Court dismissing the appeal. It js against this judgment and decree, the plaintiff has filed this second appeal. (5) Learned counsel for the appellant argues that the suit was not barred by the, principjes of res-judicata as the eariier suit was filed for a different property and a different relief than the present one. He indicated many circumstences in hisfavour. (6) I have gone through the records of the two courts below. The judgment and decree of the eariier suit has been placed on record. In earlier suit, which was filed for a few plots of the present Schedule-A, the issue no.1-A was framed as to whether the plaintiff and defendants no.1 & 2 (same parties) had jointly purchased the said property jn the auction sale ? The answer to this issue Js that it was not jointly purchased by them and the reasoning is that the plaintiff could not establish that the aforesaid property was purchased by all the brothers. The other issues regarding payment of consideration and partition were also decided ^ -3- against the plaintiff and ultimately, the aforesaid suit for permanent injunction was djsmissed. (7) After perusal of the earlier judgment and the present judgment, it would appear that the facts in issue in both the dvit suits were similar and almost similar points between the same parties for the same property have been raised in the subsequent suit which have been decided in the former suit. (8) Section 11 of the Code of CMI Procedure provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substentially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finaJly decided by such Court. (9) Relying on the decisions rendered in the matters of Nandlal Rov -Vs- Pramathanath Rov. AIR 1933 Cal.222 and Smt Ralfaxmi Dasi- Vs- Vanmah' Sen. AIR 1953 SC 33. it has been held by the M.P. High Court in the matter of Shivnarain Ramnaravan -Vs- Naaar Palika Panshad. Garoth and another. 1988 M.P.LJ. 475. that jn order to consider whether a prevjous decision is res judicata or not, the substantjal effect of what has been decided in the case should be considered. Rule of resjudicata does not depend on the identity of the subject matter but it depends on the identity of issues. The test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the case. (10) As stated above, almost al( the jssues raised in the subsequent suit have been decided in the earlier suit. As far as suit lands are concerned. they are 'also similar except that some Khasra numbers, which were not the subject matter of the former sujt, but were the part and parcel of the property purchased in auction sale, have also been added in the subsequent suit. This feature only does not change the identity of title or subject matter or actual fact in issue involved in both the cases. So far as the nature of relief is concerned, a camouflage of relief(s) claimed does not govern the applicability of principles of res- nl.i .^ ^. -4-- illJIM' Rao ^! jucffcafei which is govemed bythe identity of issMes aloing-with the other features prc^ed in sectiori 11 C.P^ (wmmitted no error otlaw White princJples^msTJ^fc^^.'.f^:;^ :li,.:l'.^;.;:'./,;.l/li ''''^^^ •:'i;.'''.^:'ll;;.-'...:.:-':;;^^ (l^) Irt^the opiniw <?f | GonsJdei^pn^invltved^nithi&jappeal.^^^^^^T^^ ^sari^J^JsniiNiGllt^ml^on^s Sd/- Sunil Kumar Sinha Judge