Byathaiah (Kum) and ors. Vs. Pentaiah (Kum) and ors. - Court Judgment

Excerpt:
- [ s.b. majmudar and; u.c. banerjee, jj.] -- code of civil procedure , 1908 — sections. 11 & 100 — res judicata — earlier litigation between original vendors and vendees of the suit property decided in favour of the latter — subsequent suit filed by the plaintiff-appellants claiming that they and defendants 4 and 5 were members of a joint family, that even though the minor plaintiffs had interest in the properties, their father and uncle had transferred the joint family properties in favour of the alienees and that those transactions were not binding on the plaintiff-appellants — suit decreed by trial court but that decision reversed by first appellate court -- constitution of india, a decision of the high court in second appeal dismissing the same on the ground that in earlier litigation between the parties, the matter was finally concluded. the trial court decreed the suit. however, the first appellate court reversed the said decision and that resulted in the second appeal before the high court. the impugned judgment of the high court reads as under: “the suit instituted by the appellants was rightly dismissed by the appellate court, as the controversy between the parties was decided in favour of the respondents in the earlier litigation between the same parties. the second appeal is without merit. the impugned judgment of the high court is set aside.s.b. majmudar and; u.c. banerjee, jj.1. constitution of india, a decision of the high court in second appeal dismissing the same on the ground that in earlier litigation between the parties, the matter was finally concluded.2. in order to appreciate the grievance of the appellant original-plaintiffs it is necessary to note a few background facts.3. it is the case of the appellant-plaintiffs that they and defendants 4 and 5 were members of a joint family and according to them even though the minor plaintiffs had interest in the suit properties, their father and uncle who are the vendors had executed the documents, had transferred joint family properties in favour of the alienees and those transactions were not binding on the appellant-plaintiffs. the trial court decreed the suit. however, the first appellate court reversed the said decision and that resulted in the second appeal before the high court. the impugned judgment of the high court reads as under:“the suit instituted by the appellants was rightly dismissed by the appellate court, as the controversy between the parties was decided in favour of the respondents in the earlier litigation between the same parties.the second appeal is without merit. it is accordingly dismissed. no costs.”4. now, a mere look at the said decision shows that the learned single judge who decided the second appeal was of the view that the controversy between the parties was decided in favour of the respondents in earlier litigation between the same parties. if that was factually correct, no exception could have been taken against the said reasoning. however, it transpires from the record that the earlier litigation was between the original vendors and the original vendees. so far as the present appellant-plaintiffs are concerned, they were claiming independent right over the suit properties which according to them could not have been alienated by the vendors in favour of the vendees. thus, they did not claim through their father and uncle — the original vendors — but they were claiming independent right over the suit properties and as such the suit could not be said to be barred by res judicata between the parties as held by the high court. only on this short ground and without expressing any opinion on the merits of the controversy between the parties, the appeal is allowed. the impugned judgment of the high court is set aside. second appeal no. 809 of 1987 is restored to the file of the high court with a request to redecide the same in accordance with law in the light of the limited jurisdiction available to it under section 100 of the code of civil procedure. as the second appeal which is being restored to the file of the high court is of 1987, we request the high court to decide the same at the earliest and preferably within a period of six months from the receipt of a copy of this order at its end. office is directed to send a copy of this order to the registrar of the high court for placing the same before the hon'ble the chief justice of the high court for doing the needful in this connection. no costs.