Bhola Singh vs Teja Singh and Another

Harnam Singh, J.—Bhola Singh Plaintiff instituted the suit out of which this appeal has arisen on 7-10-1946, for declaration that the exchange of the land in suit by Jowala Singh, Defendant 2, which Teja Singh Defendant 1 made on 22-5-1946, shall not affect his reversionary rights on the death of Defendant 2.

Defendants 1 and 2 resisted the suit and on the pleadings of the parties the following issues were fixed:

Is the Plaintiff a reversioner of Defendant 2 within 5 degrees?

Is the land in suit ancestral qua the Plaintiff and Defendant 2?

Is the point in issue 2 res judicata?

Was the exchange in dispute effected for necessity and was an and of good management?

Relief.

Finding issues 1, 3 and 5 for the plaintill and issue 2 against the Plaintiff the trial Court dismissed the suit leaving the parties to bear their own costs.

From the decree passed by tril Court on 9-5-1947, Bhola Singh appealed to the Court of the District Judge, Gurdaspur, u/s 96 Code of Civil Procedure. The appeal, however, failed and was dismissed with costs.

Bhola Singh has now come up in futher appeal to this Court u/s 100, Code of Civil Procedure.

Mr. Som Datt Bahri, learned Counsel for to the decree under appeal. He contends that the finding of the lower appellate Court issue 3 is not sustainable in law. He then contends that-under the circumstances of the case the lower appellate Court ought to have allowed additional evidence on issue 2 or remanded the case to the trial Court for retrial.

To appreciate the objections raised the facts of the case must be set out in some detail. The land in suit measuring 39 kanals 15 marlas is comprised in khasra, Nos. 438, 276, 304, 571, 627, 478/1, 277, 331 min. Khatauni No. 1, khata Nos. 7 and 8 of the jamavandi of 1944-45. Bhola Singh Plaintiff in the suit out of which this appeal has arisen was one of the three Plaintiff in Civil Suits Nos. 73, 74 and 75 of 1917 decided by Sardar Mohammad Hussain Khan, Munsif 1st Class, Gurdaspur, on 23-5-1917. In para 2 of the plaint it is set out that the final decision in civil Suits Nos. 73 to 75 of 1917 was the decision of the High Court and that the cases in the High Court were decided by Shadi Lal C.J. and Abdul Qadir J. on 26-4-1922.

In civil suits Nos. 73 to 75 of 1917, Jowahar, son of Santa was one of the Defendants and the other Defendants were mortgagees from the said Jowahar. of the land in suit in the present case Khasra Nos. 277, 571, and 627 were inter alia the subject-matter of litigation in Civil Suit 73 of 1917 and Khasra Nos. 438, 478, 276 and 304 were the subject-matter of litigation In Civil Suit No. 74 of 1917. Khasra No. 331 which is in suit in the present case was the subject-matter of litigation in civil Suit No. 75 of 1917. In suits Nos. 73 to 75 of 1917, issue 1 was about the ancestral nature of the property and the trial Court found in Suits Nos. 73 to 75 of 1917 that the suit land was ancestral in the hands of Jowahar qua Jassa Singh, llema and Bhola Singh Plaintiffs. Teja Singh Defendant 1 in the present case was not a party to civil Suits Nos. 73 to 75 of 1917, though Basant Singh, father of Teja Singh, was a Defendant in civil Suits Nos. 74 and 75 of 1917.

On the facts set out in the preceding para., Mr. Bahri maintains that the judgments in the previous suits bar the trial of issue 2 in the suit out of which this appeal has arisen. Mr. Bahri concedes that Teja Singh Defendant 1 did not derive his present title from his father, Basant Singh. He however, maintains that considering that Teja Singh Defendant 2 derives his title from Jowahar, the decision in the previous cases bars the trial of issue 2 in Civil Suit No. 523 of 1946.

The plea of res judicata proceeds upon judgments, copies whereof are P. 2 to P. 4, passed by Sardar Mohammad Hussain Khan Munsif 1st Class, Gurdaspur, on 23-5-1917. Plaintiff produced at the trial judgments in Civil Suits Nos. 73 to 75 of 1917, but no attempt was made by him to tender in evidence copies of judgments of the High Court in second appeals in those suits. It is expressly mentioned in para. 2 of the plaint that the final decision in civil Suits Nos. 73 to 75 of 1917 was the decision of the High Court.

Now, it is a settled law that if a decision is appealed against, it is the appellate judgment that must be looked upon in order to decide the question of res judicata. This is so for if an appeal is allowed on a preliminary point, then the findings of the trial Court are not res judicata. The judgment of the appellate Court not having been tendered in evidence it is not possible to allow the plea of res judicata on the basis of judgments passed by the trial Court in the previous suits. On this ground alone I disallow the contention raised.

But quite independently of the objection mentioned in the preceding para the contention raised has no force. A party may be joined as a Defendant in a suit merely because his presence is necessary in order to enable the Court to effectually and completely adjudicate upon the questions involved in the Suit. In such a case, no relief is sought against him and the matter in issue in the suit is not in issue between him and any other party. A decision in such a suit cannot be res judicata against him or his representatives-in-interest in subsequent proceedings. Jowahar was impleaded in civil Suits Nos. 73 to 75 of 1917, but no relief was claimed against him in those suits. Clearly Jowahar was a pro forma party in civil Suita Nos. 73 to 75 of 1917 and decision in those suits cannot operate as res judicata against. Teja Singh in the present proceedings assuming that Teja Singh derives his title from Jowahar.

Mr. Som Datt Bahri then contends that considering that the Plaintiff did not examine evidence on issue 2 by reason of a misapprehension on his part as to the effect of the previous judgments on the trial of this case the case ought to have been remanded by the lower appellate Court or in any case, additional evidence ought to have been permitted under Order 41, Rule 27, Code of Civil Procedure.

Now, under Rule 27 of Order 41, CPC the admissibility of additional evidence is made to depend not upon the relevancy or materiality to the issue before the Court of the evidence sought to be admitted, or upon the fact whether or not the applicant had an opportunity of adducing evidence at some earlier stage, but upon whether or not the appellate Court requires the evidence to enable it to pronounce judgment or for any other substantial cause. In civil Suit No. 523 of 1946, issues were framed on 29-11-1946 when the case was adjourned for evidence to 9-5-1947. On the last mentioned date the Plaintiff gave evidence at the trial and then closed his case. The Defendant then examined Jagat Singh D.W.1, Bahadur Singh D.W.2, Harnam D.W. 3 and himself gave evidence in his own cause. At no stage of the proceedings in the trial Court was it suggested that the Plaintiff wanted to produce evidence to prove the ancestral character of the land in suit. Indeed, he made no attempt to produce at trial extracts from the revenue records pertaining to the suit land. That being so, Plaintiff cannot be permitted in appeal to fill up the lacuna in the evidence produced by him at the trial and I am clearly of the view that the case does not fall within Rule 27 of Order 41, Code of Civil Procedure.

Then it is said that the lower appellate Court ought to have remanded the case to the trial Court for a retrial. In my opinion, considerations that I have mentioned in the preceding para, are applicable in deciding the question of remand and I find that there is no justification to order a remand on the facts stated above.

No other point was raised in these proceedings. In the result the appeal fails and is dismissed with costs.