The main legal point established in the judgment is the application of res-judicata under CPC Section 11, where the courts found that the present suit was barred due to the matter being directly and substantially in issue in a former suit between the same parties.

JUDGMENT :

CHANDRA KUMAR RAI, J.

1. Heard Mr. B.L. Yadav and Mr. K.K. Kanojiya, learned counsel for the appellant and Mr. Prem Shanker Prasad, learned counsel for the respondent.

2. This is plaintiff's second appeal under Section 100 of Civil Procedure Code against the judgment and decree dated 07.08.1982 passed in Civil Appeal No. 153 of 1980 arising out of original Suit No. 880 of 1976.

3. The present second appeal was admitted on 21.07.1983 but substantial question was not framed at that time.

4. Learned counsel for the appellant is pressing the only substantial question of law which has been framed by him in his memo of Second Appeal, accordingly, this appeal shall be heard on following substantial question of law:

“1. Whether judgment and decree in a suit between the father of the appellant and some other defendant, who is defendant in the present suit about the same land, which is ancestral and not self acquired property of the father of the appellant, principle of res-judicata will apply or not?”

5. Both parties agreed that second appeal be heard and disposed of on the substantial question of law as framed by this Court today itself.

6. Plaint in brief is that plaintiff's house and Sahan is situated in plot No. 998 Shikkimi Plot Nos. 248, 249, 250, 251 which is ancestral house and Sahan of the plaintiff; village in question is partitioned village; plaintiff's grand father Badloo was alive at the time of partition; one Doodh Nath brother of Badloo had died issueless accordingly, Badloo came in possession on the house and Sahan of Doodh Nath. Shikkimi No. 248 was recorded as parti but plaintiff's grand father established his Sahan over the same with the permission of zamindar and the same is being used in the same manner till date. Shikkimi No. 248 was in the shape of Banjar and abadi, as such it was recorded as Banjar in order to avoid any difficulty plaintiff got the settlement of the same from Gaon Sahba. Plaintiff was born before the date of vesting and he was living separate from his father as such father was impleaded as defendant IInd set. Defendant Ist set put a palani in the disputed land 2-3 months before the institution of the suit and plaintiff reside outside due to employment. Plaintiff requested the defendant Ist set to remove palani and ghoora etc. when plaintiff came back to his home defendant Ist set did not pay any attention to the request, hence the suit.

7. Defendant denied the plaint allegation and alleged in his additional statement that plaintiff and defendant No. 6 are son and father and reside together for all purposes. He further alleged that in respect to disputed property plaintiff's father who is defendant No. 6 (Naurangi) instituted a suit No. 687 of 1967 in the court of Munsif IIIrd Deoria against defendant Ist and their predecessor in interest which was dismissed by trial court and the Civil Appeal filed before District Judge Deoria was also dismissed, hence present suit in respect of same property is barred by principle of res-judicata. He further alleged that suit is also barred by principle of estoppal and acquiescence. He further alleged that property has been settled with defendant Ist set under Section-9 of U.P.Z.A. & L.R. Act as such suit filed by plaintiff is frivolous and is liable to be dismissed.

8. Plaintiff and Defendant Ist set adduced oral and documentary evidences in support of their. Defendant Ist filed judgment and decree of suit No. 687 of 1967 and Civil Appeal No. 290 of 1971 as well as the map prepared in suit No. 687 of 1967 in order to demonstrate that property in dispute in both the cases are same and identical.

9. Before trial court 8 issues were framed in which issue No. 3 was whether suit is barred by res-judicata as alleged in Para No. 5 of the written statement.

10. Trial Court considering the each and every oral and documentary evidence, came to conclusion that present suit filed by plaintiff is barred by res-judicata in view of judgment and decree passed in earlier Suit N