HAR NARAYAN TEWARI (D) THR. LRS. [APPELLANT(S)] Vs.

CANTONMENT BOARD, RAMGARH CANTONMENT & ORS.  [RESPONDENT(S)]

CIVIL APPEAL NO.8829 OF 2010

(2JB, ABHAY S. OKA and PANKAJ MITHAL JJ.)

Facts: Aggrieved by the judgment and order of the High Court dated 01.04.2009 dismissing the appeal, the plaintiff-appellant has preferred the present appeal and has also assailed the judgment and order dated 28.06.2006 of the First Appellate Court alleging that his suit was not barred by res judicata and that he has validly acquired title and possession over the disputed land.

Issue: Whether the present suit as filed by the plaintiff-appellant was barred under Section 11 CPC on principle of res judicata inasmuch as there was no adjudication of the rights of the co-defendants in the previous suit with regard to the suit land?

Arguments on behalf of counsel for appellant:

The submission is that the plaintiff-appellant was nonsuited by the First Appellate Court, on the ground that his suit was barred by res judicata. One of the essential conditions for the applicability of principle of res judicata as enshrined under Section 11 of the CPC is that the issue in the earlier suit and the subsequent suit ought to be directly and substantially the same. In the earlier Suit No. 8/64 instituted by Maharani, her claim was that she is the lawful owner of the entire 5.38 acre of land of Village Ramgarh, on the basis of the maintenance grant made in her favour by the Raja. In the said suit, the plaintiff-appellant was defendant no. 32 and the Cantonment Board, Ramgarh was defendant No. 1.

Arguments on behalf of counsel for respondent:

The written statement of the Cantonment Board itself as filed in Title Suit No.8/64 (Exh.12) makes it abundantly clear that upon the establishment of the Cantonment Board as a temporary measure in the year 1941, the Raja on being approached permitted it on 06.11.1941 to use 2.55 acres of land consisting of the dispensary building and other structures along with adjoining land to be used by the Cantonment Board for a period of six months which was extended up to 31.12.1943. There was no other settlement of any land in favour of the Cantonment Board and the Cantonment Board was in permissive possession of only 2.55 acres of land out of the 5.38 acres of the entire land of village Ramgarh.

Held: The court allowed the present appeal and held that, “In view of the above, we are of the opinion that the High Court manifestly erred in dismissing the second appeal in limine on the ground that there was no substantial question of law involved therein. As stated earlier, the substantial question of law arising in the second appeal was – Whether the suit as setup by the plaintiff-appellant was barred by principle of res judicata in view of the decision in the earlier Suit No. 8 of 64 wherein rights of the co-defendants in respect of the suit land were never adjudicated and non-acceptance of the claim of Maharani was not sufficient so as to decide the rights of the co-defendants.”