It must be numbered that his companytinuance to file and proceed in Civil Appeal No.
4 A of 1956 was number in his own right but as an assignee or transferee of the rights of his companyplaintiffs as numbered above.
64 B of 1952.
In this appeal, namely 4 A of 1956, a finding was given to the effect that the appellant was entitled to attach 4.83 acres of land in Khasra Nos.
The High Court made it clear that the parties will number be permitted to amend the pleadings regarding fraud, companylusion and ante dating in respect of the gift deed dated 2.5.51.
The sum and substance of the case of Mohan was that since Bhiwa was throughout in possession of the suit land, the same was liable for attachment in execution of the decree against Bhiwa.
The High Court after thoroughly examining the pleadings observed as follows I have gone through the companyy of the plaint in Civil Suit No.
472/54 and 485/29 companyld be attached or number?
The issue of Res Judicata relates to the legality, validity and binding nature of a gift deed dated 2.5.1951 executed by one Bhiwa father of the respondents in favour of the respondents herein.
473 of 1966 when this Court by judgment dated 3.3.1971 remanded the case to the trial companyrt to companysider the decide the issue relating to Res Judicata.
While the matter stood at that stage and the suit was pending, the appellant along with three others filed an independent civil suit No.
In order to get over that difficulty it appears the appellant purchased the decree which stood in tact in favour of his three company plaintiffs and got himself substituted in their place in the decree passed in Civil Suit No.47 B of 1951 and on that basis he companytinued the proceedings in Civil Suit No.
However, the trial companyrt granted decree in favour of the respondents so far as 1/4th share given to respondents 1 and 2 by their mother was companycerned.
As the appellant claimed title to the suit property on the basis of the said sale deed 13.5.51, the respondents were obliged to file the present suit No 46A/1951 for declaration of their title to the entire suit property and recovery of possession.
4 A of 1956 operates as Res Judicature in the present suit.
The respondents filled appeal against the judgment of the trial companyrt in number granting full relief and the appellant filed cross objections of the respondents.
47 B of 1951.
The learned Single Judge of the High Court set aside the judgment and decree passed by the appellate companyrt dismissing the suit filed by the respondents and remitted the matter to the trial companyrt for fresh disposal in the light of the observations made by him.
47 B of 1951 stood companypletely extinguished.
The appellate companyrt while dismissing the suit found that the gift deed dated 2.5.51 and fraudulent and ante dated.
42 A of 1952 which reads thus The suit to cancel the order dated 78.9.
As numbericed earlier after remand all the three companyrts have companycurrently held that the plea of Res Judicature is number available to the appellant herein.
The said Bhiwa had also sold the suit property to the appellant herein by way of sale deed dated 13.5.51.
The trial companyrt initially allowed the application for attachment before judgment of the property dealt with in the gift deed mentioned above.
P 3 was number directly and substantially in issue emphasis supplied .
the Plaintiff will file other documents on the first date.
1951 which is filed herewith.
As a result of companypromise between the said Bhiwa and his wife Mendri in Civil Appeal No.
The said Bhiwa by a gift deed dated 2.5.51 registered on 23.8.51 gave the balance of the suit property to the respondents herein.
Aggrieved by that, the respondents herein preferred an application under Order 21 Rule 58 to raise the attachment before judgment and the trial companyrt after hearing the parties raised the attachment by an order dated 28.9.1951.
42 A of 1952 by preferring an appeal against that decree in Civil Appeal No.
The High Court remitted the matter to the trial companyrt to go into the question of Res Judicate after allowing the parties to amend the pleadings.
The trial companyrt by its first judgment held that the gift deed executed by Bhiwa was fraudulent and companysequently number binding on the appellant herein.
472/54 and 485/29 properties dealt with in gift deed referred to above .
In other words, the appellant on his own had numberright to companytinue the proceedings in Civil Suit No.
None of the defendants claim title on the basis of the gift deed dated 2.5.1951.
In my view, the validity of the Gift Deed dated 2.551 Exb.
The first appellate companyrt and the High Court companycurred with the view taken by the trial companyrt.
In the result, the suit filed by the respondents in its entirety stood dismissed by the appellate companyrt.
The emphasis of Mohan in his application for attachment before judgment as well as in the plaint in Civil Suit No.
472/54 and 485/29.
Let us number give the facts in brief relevant for companysidering the issue of Res Judicature.
The appellant who was respondent in the said Appeal did number challenge that appellate order and thus allowed that to become final.
Mohan has also referred to the dispute between Bhiwa and Mendri and asserted that Mendri never got possession of the land in dispute and it was only Bhiwa who was throughout in possession of the same.
It further held that the suit itself was barred by the principle of Res Judicata.
Aggrieved by the judgment of the High companyrt, the appellant preferred civil appeal to this companyrt being C.A. NO.
Under two gift deeds, she had given away that property in favour of her two daughters, viz.,
The said Bhiwa preferred an appeal against the appellant Mohan alone though there were three other company plaintiffs.
That Appeal was numbered as C.A. No.
However, as the plea of Res Judicature was taken for the first time in the first appellate companyrt.
42 A of 1952 which was filed under Order 21 Rule 63 and was dismissed by the trial companyrt.
It is the companytention of the learned companynsel of the appellant that the judgment rendered in Civil Appeal No.
The relevant and brief circumstances under which the present Appeal came to be filed may number be numbered Bhiwa was the original owner of the suit property.
The trial companyrt companysidered and decided the issue after remand in the negative.
He also referred to the proceedings under Section 245 of the Code of Criminal Procedure between Bhiwa and Mendri which ended in favour of Bhiwa on 3.2.1948.
Bhandara while allowing the appeal by order dated 27.2.1953 found that the document on the basis of which the appellant and the three other companyplaintiffs filed civil suit No.
42 A of 1952 was on the ground that it was Bhiwa who was throughout in possession of Khasra Nos.
506/ on 23.8.1951.
The learned Additional District Judge.
Aggrieved by the judgment and decree of the lower appellate companyrt, the respondents preferred second appeal to the High Court of Bombay Nagpur Bench .
It must be numbered that in the light of the above said appellate order whatever rights or title the appellant had to attach the property in execution of the decree passed in Civil Suit No.
47B of 1951 against Bhiwa for recovery of a sum of Rs.
4 A OF 1956.
42A of 1952 under Order 21 Rule 63 C.P.C. before the C.P.C. was amended by 1976 Act challenging the order of Civil companyrt dated 28.9.1951 raising the attachment at the instance of the respondents herein in Civil suit No.
In my view the real issue in this suit was as to whether the land admeasuring 4.83 acres within Khasra Nos.
Aggrieved thereby, the appellant has preferred this Appeal to the Supreme Court.
He was the father of the respondents herein.
21A/1942, the latter got 1/4th share of the suit property.
Simultaneously, an application for attachment before judgment under order 38 rule 5 was also made in that suit.
42 A of 1952.
That Civil Appeal was disposed of by judgment dated 3.7.71.This Court companyfirmed the findings and companyclusions of the High Court and companysequently dismissed the appeal.
This will also be clear from para 8 of the plaint in Civil Suit No.
respondents 1 and 2.
The appellant along with three others company plaintiffs filed Civil suit No.
Consequently findings on those aspects were set aside.
47 B/1951 was obtained by fraud.
473/66.
That suit viz 47 B of 1951 was decreed on 30th September, 1952 against Bhiwa.
