Ajaib Singh and Another vs Kailash Dass and other

S.S. Sodhi, J.—The controversy in appeal here is with regard to the plea of res Judicata.

The land in suit originally belonged to one Nikka Singh, but it was in the possession of Vir Singh. In October 1946, Nikka Singh sold this land to Kesri Dass, Kesri Dass, not having obtained possession under the sale deed, filed a suit for possession thereof on June 17, 1937 against Nikka Singh and Vir Singh This suit was tried in the High Court on the original side and was decreed in favour of the Plaintiff Kesri Dass on September 1, 1960 One of the findings returned there being that Vir Singh was not in possession of the land in suit as a tenant A plea of adverse possession had also been raised on behalf of Vir Singh, but: it was subsequently given up and was consequently not adjudicated upon. It would appear that despite this decree too, Vir Singh centnued in possession of the land in suit

The present appeal arises from the suit filed by Ajaib Singh and Jarnail Singh-the two sons of the said Vir Singh deceased, seeking a decree for permanent injunction to restrain the Defendants from interferring with their possession over the land in suit. One of the pleas raised by them in this suit was of adverse possession. This suit was filed on May 7, 1973.

A preliminary objection was raised that the suit of the Plaintiffs was barred by the principle of res judicata in the light of the previous litigation between the parties and their predecessors-in-interest. This objection was upheld and the Plaintiffs were consequently denied the decree for injunction as prayed for.

There is a patent error in the reasoning of the courts below with regard to the bar of res judicata operating against the Plaintiffs here. It is true that a plea of adverse possession had been raised by Vir Singh in the previous litigation which was subsequently given up, but this cannot be construed to mean that the Plaintiffs are thereby Warred for all times to come from raising and establishing their title by adverse possession, even if it happens to ripen on a date subsequent to the decree in the previous suit

It was, at any rate, open to the Plaintiffs to show that they had become owners of the land in suit by adverse possession by completing the requisite period thereof after September 1, 1960, the date of the decree passed by the High Court in the previous litigation The finding of the courts below with regard to the plea of res judicata cannot, therefore, be sustained. The judgment and decree of the trial court as also that of the lower appellate court are accordingly hereby set aside and the case is remanded to the trial court for fresh decision, on merits, in accordance with law. Costs of this appeal shall be costs in the suit.

Parties are directed to appear before the trial Court on February 10,1986.