IMPORTANT POINT
Res-judicata--If a person does not raise a plea which is available to him in one proceedings, he is not competent to raise the same in the subsequent suit or in such an eventuality, the subsequent proceedings are hit by the provisions of Order II Rule 2 C.P.C

Mahesh Grover, J.:- This Regular Second Appeal is directed against the judgments and decrees dated 10.1.2007 and 18.4.2007 passed respectively by the Additional Civil Judge (Senior Division), Ganaur (hereinafter described as ‘the trial Court’) and the Additional District Judge, Sonepat (referred to hereinafter as ‘the First Appellate Court’) whereby the suit and the appeal of the plaintiff-appellant were dismissed.

2. The appellant had filed a suit for redemption against the defendants-respondents. It was pleaded that the father of the appellant was owner in possession of agricultural land, which was described in the plaint; that the said land was mortgaged by him in lieu of mortgage money of Rs.600/- on 28.6.1944 with Pema son of Kunja, grand-father of respondent nos. 1 & 2; that mutation no.1350 was sanctioned in that regard on 10.9.1944; that during the consolidation proceedings, land measuring 21 kanals 12 marlas had been allotted to the mortgagee in lieu of the land mortgaged which was cultivated by him till 1962; that the father of the appellant had redeemed the land in dispute from the said Pema on payment of mortgage money of Rs.600/-; that thereafter, the father of the appellant mortgaged with possession the suit land along with his other land situated in the village, total measuring 68 kanals 12 marlas, for an amount of Rs.14,000/- with one Maman son of Ranpat vide registered conditional mortgage deed dated 6.4.1964/25.9.1964 and that father of the appellant could not get the said land redeemed within the stipulated period and the right of redemption was foreclosed.

3. It was the further case of the appellant that he and his brother- Jai Parkash had filed a suit for possession by way of pre-emption and the said suit was decreed vide judgment dated 9.8.1967 and they had become the owners of land measuring 68 kanals 12 marlas including the land in dispute measuring 21 kanals 12 marlas and the legal representatives of Pema (since deceased) became the mortgagees under them and that the legal representatives of Pema transferred the mortgagee rights qua the suit land in favour of respondent nos. 1 & 2 through family settlement vide order dated 11.9.1991 which was illegal and not binding on their rights.

4. The appellant had also pleaded that respondent nos. 1 & 2 had got transferred land measuring 4 kanals 2 marlas out of the suit land in favour of respondent nos. 3 to 7 through a decree dated 23.3.1994 passed in Civil Suit No.37 of 1994 which was also illegal and not binding on his rights. He had averred that mortgage created on 28.6.1944 was a usufructuary mortgage and no period was prescribed for its redemption.

5. Upon notice, the respondents appeared and filed their written statement controverting the allegations of the appellant. It was pleaded that the suit was barred by the provisions of Order II Rule 2 of the C.P.C. as well as the principles of res judicata because the appellant had also filed Civil Suit No.552 of 1984 for possession in respect of the same land against Ran Singh, father of respondent nos. 1 & 2 and others on 15.3.1982, but the same was dismissed vide judgment dated 22.1.1987 which was maintained in appeal as well. It was alleged that the appellant had filed the instant suit by concealment of material facts and it was liable to be dismissed on this ground as well.

The parties went to trial on the following issues:-

1. Whether the plaintiff is entitled to a decree for redemption of the suit property with its possession as prayed for?OPP

2. Whether the suit of the plaintiff is barred by the principles of res judicata and by provisions of Order II Rule 2 CPC as alleged?OPD

3. Whether the suit of the plaintiff is not maintainable in the present form because the defendants are owners in possession of the suit land as alleged?OPD

4. Whether the suit has been filed by the concealment of material facts and accordingly, it is liable to be dismissed with special costs under Section 35-A CPC/OPD

5. Wh