JUDGMENT
Permod Kohli, J.
1. On hearing the learned Counsel for the parties, I am of the opinion that following substantial questions of law are involved in the present Regular Second Appeal for consideration of this Court:
A. Whether doctrine of resjudicata is applicable where the defendant in earlier suit has taken no defence and suffered an ex-parte decree?
B. Whether suit simpliciter for injunction against the alleged co-sharer in exclusive possession is maintainable?
2. This is plaintiffs Regular Second Appeal against the judgment and decree dated 12.3.1984 passed in Civil Appeal No. 137 of 1982 by the Additional District Judge, Jullundur, allowing the appeal of defendant-respondent against the judgment and decree dated 3.5.1982 passed by Sub-Judge, 1st Class, Jullundur. As a consequence, suit of the plaintiff-appellant has been dismissed.
3. The dispute in this Regular Second Appeal relates to succession in respect to property of one Kunda Singh @ Kundan Singh who died in the year 1940, leaving behind two daughters, namely, Rattni and Bachani. Plaintiff-Kishan Singh and defendant-Sucha Singh are admittedly sons of Kunda Singh’s real uncle: From the pedigree table, it appears that one Harnam Singh had six sons, namely, Gundli, Jhagru, Chetu, Lalu, Narain Singh and Chandu. Gunduand Lalu died issueless. Kunda Singh was son of Narain Singh, whereas plaintiff-Kishan Singh is son of Jhagru and Sucha Singh is son of Chetu. After the death of Kunda Singh, his two daughters came into possession of the land measuring 188 kanals comprised in various khasra numbers, as detailed in the plaint. Sucha Singh, present defendant/respondent filed Civil Suit No. 529 of 1968 against Smt. Rattni wife of Targ Singh, Smt Bachani wife of Shanker Singh, Smt. Ram Kaur wife of Labhu, Smt. Amar Kaur @ Bib) daughter of Pal Singh @ Pala, Kishan Singh son of Jhagru (the present plaintiff) and Labhu son of Chet Singh, in the Court of Sub Judge, II Class, Nakodar, claiming that the daughters of Kunda Singh,has no right over the property of Kunda Singh, same being coparcenary and ancestral property and revert back to the male members who are agnates. Kishan Singh, plaintiff/appellant herein, though impleaded as one of the defendants in the said suit, chose not to appear and was proceeded ex-parte.
4. The said suit of Sucha Singh – defendant/respondent herein was decreed in his favour vide-judgment and decree dated 17.12.1971. It is pertinent to mention here Rattni and Bachani challenged the judgment and decree dated 17.12.1971 in appeal which was compromised. Kishan Singh, plaintiff/appellant herein, did not file any appeal against the judgment and decree passed in favour of Sucha Singh, the present defendant/respondent. On the basis of compromise, Sucha Singh was put in possession of the land which was earlier held by Rattni and Bachani, after death of Kunda Singh and is enjoying the possession of the same.
5. Present suit has been filed by plaintiff/appellant Kishan Singh for permanent injunction restraining defendant/respondent – Sucha Singh from selling or disposing of the land in any manner. Plaintiff claimed to be the reversioner of Kunda Singh in equal share with Sucha Singh.
The suit of the plaintiff has been resisted by Sucha Singh-defendant on variety of grounds:
(1) The suit is barred by doctrine of resjudicata, in view of the judgment and decree dated 17.12.1971 passed in earlier suit wherein plaintiff Kishan Singh was also a party; (2) Kishan Singh is not possession of the land for the last 40 years and is not entitled to any relief; (3) Plaintiff is estopped from seeking any relief as Sucha Singh-defendant is enjoying the property which is in the knowledge of the plaintiff and without any objection being raised by him, the suit is not maintainable. The trial Court framed following Issues:
1. Whether the plaintiff is in possession of the land in dispute and suit for permanent injunction is maintainable? OPP
2. Whether the plaintiff is owner and has locus standi to file the present suit? OPP
3. Whether the land in dispute is co-parcenary property? If so, its effect? OPP
4. Whether any decree passed is binding on the plaintiff? OPO
5. Whether the matter covered by issue Nos. 1, 2, 3 and 4 is barred by principle of res judicata? OPO
6. Whether the plaintiff is entitled to a decree for permanent injunction as prayed for? OPD
7. Whether the plaintiff is estopped by his acts and conduct from filing this suit? OPO
8. Whether the plaintiff has got any cause of action to file the present suit? OPD
9. Whether the plaintiff has lost his right on the basis of acquiescence, long delay? OPO
10. Relief.
Issue Nos. 1 to 5 were taken up together by the trial Court as they were considered to be interlinked. The trial Court, while considering effect of earlier decision between the parties ruled in favour of the plaintiff, Kishan Singh and held the suit to be maintainable and not hit by the doctrine of res judicata. The trial Court also held that the plaintiff, being reversioner equally placed with Sucha Singh-defendant and the nature of property being ancestral and co-parcenary, is entitled to equal share with Sucha Singh. The trial Court accordingly vide its judgment and decree dated 3.5.1982, decreed the suit for permanent injunction in favour of Kishan Singh, plaintiff and against Sucha Singh-defendant.
6. Sucha Singh-defendant filed an appeal before the Additional District Judge, Jullundur who vide his judgment and decree dated 12.3.1984 reversed and set aside the judgment and decree dated 3.5.1982 passed by the trial Court and dismissed the suit of the plaintiff-Kishan Singh. The First Appellate Court allowed the appeal on two grounds: firstly, the First Appellate Court is of the view that the suit is barred by principles of res judicata in view of the judgment and decree dated 17.12.1971 passed in Suit No. 529 of 1968, which, inter alia, decides the dispute between the parties and secondly, the suit for injunction is not maintainable, in view of provisions of Section 41(h) of the Specific Relief Act, 1963 as other efficacious relief was available to the plaintiff. It is this judgment and decree of the First Appellate Court which is under challenge in the present Regular Second Appeal.
7. I have heard the learned Counsel for the parties and carefully gone through the record of the trial Court.
8. Main contention of the counsel for the appellant is that in the earlier suit i.e. Suit No. 529 of 968 filed by Sucha Singh, no relief was sought. against the plaintiff-Kishan Singh who was one of the defendants therein and the right of the plaintiff having not been decided, the judgment and decree dated 17.12.1971 passed in Suit No. 529 of 1968, has no impact on the claim of the plaintiff/appellant. He referred to the prayer made in Suit No. 529 of 1968 filed by Sucha Singh and following observations made in the judgment dated 17.12.1971:
It is proved beyond doubt that plaintiff is a collateral of Kunda Singh and real brother of the deceased Pal Singh. It is also proved that defendants 1 and 2 are daughters of Kunda Singh. Property is proved also to be ancestral.
The law as stated above is that daughters are preferred in respect of non-ancestral property only. So far the ancestral property, it is collaterals who are the preferred heirs in comparison of the daughters. That being the position of plaintiff being collateral within five degrees is held to be better heir of the deceased Kunda Singh and the said Pal Singh. The issue is accordingly found in favour of the plaintiff.
It is accordingly pleaded that Kishan Singh was only a Proforma defendant and relief was sought only against the daughters. According to the learned Counsel, doctrine of resjudicata is not attracted in the present case.
9. On the other hand, learned Counsel for the respondent has drawn my attention to tile title of the suit and relief claimed in Suit No. 529 of 1968. From the title of the suit, it is evident that it is a suit for declaration that the plaintiff is owner in possession of land measuring 151 kanals detailed in the title of the suit; being successor of Kunda Singh and Pal Singh alias Pala. A further prayer was made that defendant Nos. 1 and 2 have no right over the suit land. Further relief of permanent injunction was sought against the defendants not to interfere in his ownership and possession and alternative relief of possession by eviction over land measuring 209 kanals was made, in the event possession of the plaintiff is not established. Learned Sub Judge, IInd Class, Nakodar decreed the suit vide its judgment and decree dated 17.12.1971, by granting following relief:
18. Relief
In the result, the plaintiff, succeeds. He is granted a decree of possession of the land as prayed in plaint. The plaintiff would also be entitled to the costs.
10. In the present case, short question that arises for consideration is whether the judgment and decree dated 17.12.1971 passed by the Sub Judge, 1st Class, Nakodar in Civil Suit No. 529 of 1968 will operate as resjudicata and the present suit is hit by Section 11 of the CPC and is liable to be dismissed. As observed above, the trial Court was of the opinion that the suit is maintainable and is not barred by Section 11 of the Code of Civil Procedure whereas the First Appellate Court has applied Section 11 of the CPC and dismissed the suit. Section 11 of the CPC is quoted herein below:
11. No Court shall try any suit or issue in which the matter directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decide by such Court.
Explanation I. – The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II. – For the purpose of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III. – The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV. – Any matter which might all ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V. – Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section be deemed to have been refused.
Explanation VI. – Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purpose of this section, be deemed to claim under the persons so litigating.
Explanation VII. – The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VII. – An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
With a view to apply, Section. 11, following conditions are necessary:
(i) Subject matter in issue in the latest suit must be directly and substantially in issue in a former suit;
(ii) Parties in both the suits should be same or claiming their right through them;
(iii) Court must be competent to try the subsequent suit so should be the position, with the earlier suit.
11. From the judgment dated 17.12.1971, it appears that Sucha Singh, plaintiff in the said suit claimed right over the land of Kunda Singh by seeking a declaration that he is owner in possession and the daughters of Kunda Singh and other defendants have no concern with the same. Alternatively, he sought possession of the land. Suit of Sucha Singh was decreed in toto. His claim was for 151 kanals of land comprising various khasra numbers specified in the plaint. The judgment in Sucha Singh’s case has attained finality. It has also come on record in the judgment of the First Appellate Court that decree-dated 17.12.1971 has been fully implemented and Sucha Singh was put in possession vide Ex. 0-1, the Rapat Roznamcha. Since the land involved in both the suits is same, it is thus, apparent that the subject matter in both the suits is the same. Sucha Singh also claimed his right over the land which is now claimed by plaintiff-Kishan Singh in the present suit. Though both the courts below held that the property is ancestral and co-parcenary, but the right of Sucha Singh over the property has been declared in Civil Suit No. 529 of 1968. Present appellant-Kishan Singh was a party-defendant in the earlier suit. Decree for declaration of the right of Sucha Singh over the property was passed against Kishan Singh. Neither appeal was preferred against the said judgment nor the said decree is challenged in the present suit. The decree dated 17.12.1971 having attained finality is binding upon the present appellant. It has been urged on behalf of the counsel for the appellant that since no specific relief was claimed against Kishan Singh challenging his right in Civil Suit No. 529 of 1968, the judgment and decree dated 17.12.1971 cannot operate a res judicata. This contention is devoid of any legal substance. Explanation IV appended to Section II of the CPC also provides that where any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Meaning thereby that in Civil Suit No. 529 of 1968 it vas open to Kishan Singh, plaintiff/appellant to have projected his defence and asserted his right over the suit land as against the claim of Sucha Singh. He failed to do so and suffered a decree against him wherein Sucha Singh’s right over the property, subject matter of dispute in the present suit, was declared by the court of competent jurisdiction. It was not only a declaratory decree but also for possession and injunction against all the defendants of the said suit including appellant Kishan Singh. This decree was duly implemented and Sucha Singh put in possession of the land. Kishan Singh never disputed the claim and possession of Sucha Singh. Learned Counsel for the appellant has relied open the following judgments:
1. Asrar Ahmed v. Durgall Committee, Ajmer A.I.R. 1947 (34) Privy Council 1.
2. Syed Mohd. Salie Labbai (Dead) by LRs and Ors. v. Mohd. Hanifa (dead) by LRs. and Ors. .
3. Inacio Martins, deceased through LRs. v. Narayan Hari Naik and Ors. ; and.
4. Santosh Hazari v. Purushottam Tiwari (dead) by LRs. .
The ratio of the judgment passed in the case of Asrar Ahmed (supra) is not applicable to the facts and circumstances of the present case because therein the Privy Council was considering the applicability of doctrine of res judicata in a case where plaintiff was not a party in the earlier suit. Thus, the Privy Council held as under:
20…. In the second place; the plaintiffs were not the Durgah Committee nor persons who purported to sue on behalf of the Committee and it is by 110 means clear that on such an issue they were entitled to speak for the Committee. They were two persons who were the President and a member of the Committee. It may be, though it is unnecessary to decide it, that upon the issue whether the defendant should be removed from his office for the reason alleged by the plaintiffs, the judgments of Mr. Lasalle and the Commissioner would support the plea of resjudicata as between that defendant and all persons interested to obtain his removal. But upon the question of hereditary right, it does not appear to their Lordships that the plea can be supported. Leaving out the Muslim community, it was the Durgah Committee, who were peculiarly interested in this question and it cannot be supposed that they or their successors are to be bound by a decision in proceedings to which they were not-parties. Upon these grounds the final plea of res judicata must be rejected.
Again the ratio of judgment passed in the case of Syed Mohd. SalieLabbai (supra), has no application to the facts and circumstances of the present case. In the aforesaid case, the Hon’ble Supreme Court was considering the application of doctrine, of resjudicata over an issue which was not in previous judgments. Thus, the Hon’ble Supreme Court observed as under:
60. On a consideration, therefore, of the fact, circumstances and the evidence of the present case, We are satisfied that the mosque as also its adjuncts constituted wakf properties and had been, used as such for a long time so as to culminate into a valid and binding public wakf. We have already held that as the public character of the wakf was not in issue in the previous judgments relied upon by the appellants, the said judgments did not operate as res judicata. We, therefore, affirm the finding of the High Court on this issue.
The ratio of judgment passed in the case of Shri Inacio Martins (supra) is equally not applicable to the facts of the present case. In the aforesaid case, Hon’ble Supreme Court while considering the applicability of doctrine of res judicata in a second suit based on a distinct cause of action, observed as under:
5…. But the Rule does not preclude a second suit based on a distinct cause, of action It may not be out of place to clarify that the doctrine of resjudicata differs from the rule embodied in Order 2, Rule 2, in that the former places emphasis on the plaintiffs duty to exhaust all available grounds in support of his claim while the latter requires the plaintiff to claim all reliefs emanating from the same cause of action. The High Court is, therefore, clearly wrong in its view that the relief claimed is neither relevant nor material. Now, in the fact situation of the present case as we have pointed out earlier, the first suit was for an injunction and not for possession of the demised property. The first suit was dismissed on the technical ground that since the plaintiff was not in de facto possession no injunction could be granted and a suit for a mere declaration of status without seeking the consequential relief for possession could not lie. Once it was found that the plaintiff was not in actual physical possession of the demised property, the suit had become infructuous. The cause of action for the former suit was not based on the allegation that the possession of the plaintiff was forcibly taken sometime in the second week of June, 1968. The allegation in the former suit was that the plaintiff was a lessee and his possession was threatened and, therefore, he sought the court’s assistance to protect his possession by a prohibitory injunction. When in the course of that suit it was found that the plaintiff had in fact been dispossessed, there was no question of granting an injunction and the only relief which the court could have granted was in regard to the declaration sought which the court held could not be granted in view of the provisions of Specific Relief Act. Therefore, the cause of action for the former suit was based on an apprehension that the defendants we to likely to forcibly dispossess the plaintiff. The cause of action or that suit was not on the premise that he had in fact been illegally and forcibly dispossessed and needed the court’s assistance to be restored to possession. Therefore, the subsequent suit was based on a distinct cause of action not found in the former suit and hence we do not think that the High Court was right in concluding that the suit was barred by Order 2 Rule 2(3) of the Code, of Civil Procedure….
12. I have carefully gone through the judgments. These judgments have no application to the facts and circumstances of the present case, On the contrary, the principle enunciated by the Apex Court in the case of Lonakutty v. Thomman and Anr. , is applicable to the present case which is as under:
18. Each party being partly aggrieved by both the decrees, each filed an appeal in the District Court against the two decrees. The learned Subordinate Judge, sitting in appeal had thus 4 appeals before him, 2 arising from each suit. He confirmed the decrees under appeal and dismissed all the appeals.
19. Respondents did not file any further appeal against the decree passed by the District Court in the appeals arising out of their suit They filed a second appeal in the High Court only as against the decree passed by the District Court in A.S. 66 of 1958 which arose out of the decree passed by the trial Court in the appellant’s suit. Thus, the decision of the District Court rendered in the appeal arising out of the respondents suit became final and conclusive. That decision, not having been appealed against, could not be re-opened in the second appeal arising out of the appellant’s suit. The issue whether respondents had the easementary right to the flow of water through the appellant’s land for fishing purposes was directly and substantially in issue in the respondents’ suit. That issue was heard and finally decided by the District Court in a proceeding between the same parties and the decision was rendered before the High Court decided the second appeal. The decision of the District Court was given in an appeal arising out of a suit, which though instituted subsequently, stood finally decided before the High Court disposed of the second appeal. The decision was therefore one in a “former suit” within the meaning of Section II, Explanation I, Civil Procedure Code. Accordingly, the High Court was in error in deciding an issue which was heard and finally decided in a “former suit” and was therefore barred by res judicata.
In view of the above, I am of the opinion that the doctrine of res judicata which is based upon a public policy that the decision of the court must attain finality, is fully attracted in the present case. Section II of the CPC not only bars a second decision of the same issue, but also prevents the court from investigating the issue afresh. The words in Section 11 of the CPC that “no court shall try any suit or issue” signify that even an investigation of the issue is, impermissible. The suit filed by the appellant is thus barred by doctrine of resjudicata and the First Appellate Court has rightly held so. Even the second issue which has been decided by the First Appellate Court cannot be faulted with. Section 41(h) of the Specific Relief Act reads as under:
41. Injunction when refused.-Any injunction cannot be granted-
xxx xxx xxx
(h) when equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of beach of trust;
This section also creates an impediment for the Court to grant injunction where equally efficacious remedy is available to the plaintiff. It is not in dispute that Kishan Singh, plaintiff-appellant herein is one of the reversioners and his status is equal to Sucha Singh. The property, subject matter of the suit, was also ancestral and co-parcenary property in the hands of Kunda Singh. Kunda Singh had no male issue at the time of his death in the year 1940 and the succession being governed by unmodified Hindu Law his agnates within five degrees, could claim the right over the property. Kishan Singh and Sucha Singh, being such agnates were under law entitled to claim their right But Kishan Singh abandoned his right by suffering a decree against him in a suit filed by Sucha Singh, being Civil Suit No. 529 of 1968. Validity of the earlier decree is not in question and the decree having attained finality all findings are binding upon Kishan Singh. Even in absence of a decree, only way to assert right over the property was/is to seek partition of the property or a declaration of right with joint possession. These are the efficacious remedies available under law. None of the efficacious remedies have been availed. Hence bar of Section 41(h) of the Specific Relief Act will operate in the present case. For this reason also, suit filed by the appellant was not maintainable and rightly dismissed by the First Appellate Court.
In view of the above, I affirm the judgment and decree dated 12.3.1984 passed in Civil Appeal No. 137 of 1982 by the Additional District Judge, Jullundhur. Consequently, this Regular Second Appeal filed by the appellant/plaintiff is hereby dismissed.