The application of res judicata and the binding nature of previous judgments and decrees in determining ownership and possession of the disputed property.

Sabina, J.

1. Plaintiffs had filed a suit for declaration with consequential relief of permanent injunction that they were absolute owners in possession of the house, plot and site of shop described in the head note of the plaint. It was further prayed that the judgment and decree passed in Civil Suit No. 309/1 of 1986 dated 11.5.1991 and maintained an appeal by the Additional District Judge, Rohtak on 4.9.1992 were illegal null and void. The suit of the plaintiffs was dismissed by the Additional Civil Judge (Senior Division) Rohtak vide judgment and decree dated 19.8.2004. The appeal filed by plaintiffs was dismissed by the Additional District Judge, Rohtak vide judgment and decree dated 8.12.2005. Hence, the present appeal.

2. The facts of the case, as noticed by the Additional District Judge in paras 2 and 3 of its judgment, read as under :-

"Case of the plaintiffs/appellants (here-in-after called the plaintiff) as emerging out from their plaint is that plaintiffs and defendant No. 4 Jaipal are the sons of defendant no. 3. They were members of Joint Hindu Family uptill 1970. A residential house, a gher/plot and site for shop, detailed and described in para no. 1 of the plaint and shown by alphabets ABCD, EFGH, and IJKL, respectively and shown in red colour in the site plan, attached with the plaint and situated in village Chamariyan (here-in-after called the property in dispute) were initially the part of agricultural land bearing Khewat No. 246/233, Khatoni No. 387, Rect. no. 32 Killa NO. 19/2 (6-12), 20/1 (2-12), total measuring 9 Kanals 4 Marlas. It was owned and possessed by Prabhu and Randhir etc. It was taken in exchange by defendant no. 2, defendant no. 3 and one Chhailu, from Prabhu and Randhir etc. vide Exchange Deed dated 7.4.1961. In lieu of the land in dispute, defendant no. 2 and said Chhailu gave two houses plots comprised in Khasra No. 27//15/11 & 27/15/12 to Parbhu and Randhir etc. Likewise defendant no. 3 gave one residential house measuring 46 Sq. yards and plot comprised in Khasra No. 27/15/10 measuring 0-8 Marlas to Prabhu and Randhir etc. in that exchange. The parties to the exchange took the possession of their respective exchanged properties. On the basis of the exchange, Mutation was sanctioned on 29.1.1962. In this way, defendant no. 2 defendant No. 3 and said Chhailu had become owner-in possession in equal shares of the property in dispute. Thereafter, the joint properties of defendants no. 2, defendant No. 3 and said Chhailu were partitioned through an oral partition. The property in dispute fell to the share of defendant no. 3 whereas the other properties fell to the shares of defendant no. 2 and said Chhailu. The parties to the partition took possession of the properties which had fallen to their respective shares and became owner in possession of the same as reflected in the Jambandi for the year 1987-88. In this way, the plaintiffs/defendants No. 3 and 4 being the members of the Joint Hindu Family became co-sharers in possession of the property in dispute. In the year 1970 a family settlement took place, herein the properties of Joint Hindu Family, constituted by the plaintiffs and defendants no. 3 and 4 were partitioned. In that family settlement, the plaintiffs and defendant No.4 got the property in dispute and became absolute owners of the property in dispute. Defendant No.3 ceased to have any interest in the same. However, in the Revenue Record, the property in dispute continued to be standing in the name of Gugan, Thereafter, plaintiffs and defendant no. 4 had constructed residential house and a room on the plot and also installed a tubewell. The plaintiffs are residing in that residential house since the date of its construction. The plot is being used by them as Gher for tethering cattle and for the storing fodder etc. Defendant No.1 without any right or interest in the land in dispute comprised in Rect. No. 32 Killa NO. 19/2 (6- 12) and 20/1(2-12) i.e. the part of the land in d