Har Kaur vs Dhappan (died) and others

Pritpal Singh, J.

The appellant Har Kaur''s suit for declaration that she is owner in possession of the land in dispute to the extent of half share was dismissed by the trial Court as being barred by principle of res judicata. She filed an appeal which was dismissed by the lower appellate Court on August 24, 1976. Against the judgment and decree of the lower appellate Court she has come up in second appeal before this Court.

Des Ram was owner of the disputed land. He died in 1958. The appellant Har Kaur is his daughter and Bansi, her brother, was predecessor in interest of the defendantsrespondents. Smt. Dhapan is his widow and the remaining defendants, namely, Bharpai, Muniya and Birji are his daughters. The appellant stated in the plaint that she and her brother Bansi inherited the land in dispute in equal shares on the death of their father Des Ram. On this basis she filed the suit for declaration claiming half share in the land in dispute.

The defendants pleaded that in accordance with the law of succession, which was prevalent at the time of the death of Des Ram, Bansi was the sole heir of his father. Bansi had filed a suit for declaration against the appellant for getting his rights declared and in that suit the appellant had filed a written statement admitting her brother''s claim. In consequence thereof the suit of Bansi was decreed on January 14, 1959 in which it was declared that he alone was owner in possession of the land in dispute. It was consequently pleaded that the appellant''s suit is barred by the principle of res judicate. Both the Courts below accepted the defendants plea and dismissed the appellant''s suit.

On hearing the learned counsel for the parties, I find no reason to interfere with the impugned judgment and decree of the lower appellate Court. The defendants produced a copy of judgment (Exhibit D 9) which was delivered by the Civil Court on January 14, 1959 in a suit filed by the appellant''s brother Bansi against the appellant. This judgment shows that after the death of Des Ram the land in dispute was mutated in favour of the appellant and Bansi in equal shares. Bansi, thereafter, filed a suit for declaration that he alone was owner of the land in dispute and his sister Har Kaur, the present appellant, had no share in this land. The appellant filed a written statement in which she admitted her brother''s claim. On her admission her brother''s suit was decreed and he was declared to be the sole owner of the land in dispute.

The first contention of the appellant''s counsel is that there is no evidence to prove that the appellant had in fact filed a written statement in the earlier suit admitting the claim of her brother and that as such the judgment and decree passed in the previous suit can have no effect on her present litigation. There is no merit in this contention. In reply to the appellant''s suit the defendants in their written statement categorically stated that the earlier suit of appellant''s brother was decreed on January 14, 1959 declaring him to be the sole owner of the land in dispute in the wake of the written statement filed by the appellant admitting her brother''s claim. This plea was not specifically denied by the appellant in the replication. Hence, in the absence of pleading of denial, the appellant now cannot be heard to say that she did not file a written statement in the earlier suit admitting her brother''s claim. Even otherwise this plea has no meaning because the judgment and decree of the previous litigation were neither appealed against by the appellant nor they were challenged in any suit. It does not, therefore, now lie in the mouth of the appellant to say that the judgment (Exhibit D.9) is not binding on her.

The other contention of the appellant''s counsel is that Exhibit D. 9 is a consent decree which cannot operate as res judicata. It is true that a consent decree is not a decision by the Court and, therefore, cannot strictly be regarded as a decision on a matter which was heard and finally decided, but such a decree certainly binds the parties and none of them can reagitate the matter till that decree remains enforceable. In was held in Bishundeo Narain v. Seogeni Rai, AIR 1951 Supreme Court 280, that it does not matter whether the decree was by consent or otherwise, for a decree, unless and until it is set aside or avoided in one or other of the ways in which alone a decree may be attacked, holds its force and binds all concerned. The matter in issue was also considered by this Court in Smt. Maha Devi and others v. Smt. Lichhman & others, 1978 PLJ 379, and it was held that a consent decree is as much binding on the parties as a decree passed by the Court after contest. The principle of res judicate is nothing else but a plea of estoppel on the basis of the previous judgment. It was observed in this judgment that it has been held time and again that if a judgment has been passed on the basis of a compromise between the parties, it operates as estoppel between them in the subsequent litigation regarding that matter. A reference in this judgment was made to the observations of Lord Herschell in re: South American and Mexican Co., Ex. Parte Bank of England, (1895) 1 Ch. 37 (C), which are as follows :

"The truth is, a judgment by consent is intended to put a stop to litigation between the parties just as must as is a judgment which result from the decisions of the Court after the matter has been fought out to the end. And I think it would be very mischievous if one were not to give a fair and reasonable interpretation to such judgment, and were to allow questions that were really involved in the action to be fought over again in a subsequent action."

These observations have been approved by the Supreme Court in Sailendra Narayan Bhanja Deo v. The State of Orissa, AIR 1956 S.C. 346.

In my view, therefore, the earlier judgment (Exhibit D. 9) is binding on the appellant and she cannot be allowed to raise the same matter again in her suit.

For these reasons I find no merit in this appeal and dismiss the same. No order as to costs.