The main legal point established in the judgment is that a subsequent suit is barred under Order 23 Rule 3A CPC, except on the ground of fraud, and the plaintiff cannot claim a right on the basis of a pre-existing right in a subsequent suit.

JUDGMENT

Arvind Singh Sangwan, J. - Challenge in this appeal, filed by the appellant/defendant, is laid to the judgment and decree dated 19.11.1999 passed by the lower appellate Court, vide which the judgment and decree dated 28.05.1999 passed by the trial Court dismissing the suit of the respondent/plaintiff, was set aside and the suit of the respondent/plaintiff was decreed.

2. Brief facts of the case are that respondent/plaintiff Gugan was owner in possession of the suit land as described in the plaint. On the suit land, 50 Shisham trees were standing and a tubewell was also installed, having electricity connection from HSEB. It is further pleaded in the plaint that on 30.07.1986, the Civil Court passed a judgment and decree in favour of Ram Karan (who was plaintiff in that suit) against Gugan (who was defendant in that suit) and the property in dispute was transferred in the name of Ram Karan. It is further pleaded in the plaint that the judgment and decree is an outcome of fraud, misrepresentation, coercion and is liable to be set aside and simultaneously, it is also prayed that the mutation No. 1506, vide which the aforesaid decree was incorporated in the revenue records be also set aside. As per the amended plaint, it was further prayed that a decree of possession be also granted in favour of the defendant. The suit was contested by the defendant on the ground that Gugan was represented by two advocates, who had filed written statement on his behalf and thereafter, Gugan appeared before the Court and made a statement on oath admitting the contents of the plaint filed in the said suit and thereafter the suit was decreed. The grounds taken in the plaint regarding fruad or misrepresentation were denied and a case was set up that after Ram Karan died on 26.11.1985, mother of the plaintiff performed Karewa marriage with Gugan as per custom in the family and, therefore, subsequently the suit was filed, in which Gugan appeared and admitted the claim and accordingly, the decree was passed in accordance with law, hence, there was no fraud or coercion.

3. The trial Court framed the following issues:

1. Whether the plaintiff is owner in possession of the land in dispute ? OPP

2. Whether the judgment and decree dated 30.7.86 passed in civil suit No. 393 of 26.7.86 is illegal, null and void and is liable to be set aside, as alleged in the plaint ? OPP

3. Whether the plaintiff is estopped by his own act and conduct from filing the suit ? OPD

4. Whether the suit is bad for principles of res judicata ? OPD

5. Whether the suit is beyond limitation ? OPD

6. Relief.

4. Thereafter, one additional issue was also framed, which is as under:

'1. Whether the report of the Local Commissioner is liable to be set aside as alleged ? OPD

In order to give brief description of the Exhibits and statements, para 4 of the judgment of the trial Court is reproduced below:

'4. To substantiate his case, plaintiff examined PW-1 Kuldeep singh, Record Keeper, PW-2 Ramesh Kumar, Clerk H.S.E,B, PW-3 Hukam Chand, Teacher, Boys Senior Secondary school, PW-4 Sheela Devi, PW-5 Zile Singh and closed the oral evidence. In the documentary evidence, plaintiff produced EX.P.l Special power of attorney, Ex.Pl Admission Form of Ram Karan (Ex.P .l was marked Twice), EX.PM2 school Leaving Certificate of Ram Karan, Ex.P3 Certified copy of judgment dated 30-7.86, Ex.P-4 " be set aside/as allege d?UPA. certified copy of decree sheet dated 30.7.86, Ex.P5 certified copy of jamabandi for the year 1985-86, Ex,P6 certified copy of mutation No.1506 and closed the evidence. On the other hand defendant examined himself as Dw-1, Partap Singh as DW-2, Mahender Singh as DW-3, Dharampal as DW-4 Rajbir singh as DW-5, Mool Chand as DW-6 and closed the oral evidence. In the documentary evidence defendant produced Ex.D1 jamabandi for the year 4985-86 Ex.D2 copy of plaint, Ex D3 decree sheet. Ex.D.4 mutation No.1506 Ex.D5 copy of orcer dated 12.5.94, EX,D6 copy of application u/s 151 CPC Ex.D7 reply of the a