' By this judgment I propose to dispose of the following two Regular Second Appeals in which common questions of law and fact are involved :--
(1) RSA No,34 of 1991, Allah Ditta v. Bashir alias Faqiria.
(2) RSA No,35 of 1991, Noor Muhammad v. Bashir alias Faqiria.
2. The relevant facts are that on 24-3-1966 Noor Muhammad appellant instituted a Suit (No,71 of 1966) against the respondent Bashir Ahmad alias Faqiria for a declaration to the effect that he was the owner in possession of 106 Kanals 14 Marlas of land situated in Village. Chot Kalan, Tehsil Phalia District Gujrat fully detailed in the plaint. On the same day Allah Ditta appellant also instituted a similar Suit (No,73 of 1966) against the same respondent for a declaration to the effect that he was the owner in possession of 51 Kanals 16 Marlas of land located in the same village. They claimed that they had purchased the suit land from the respondent through mutations. On 24-3-1966 both the suits were decreed ex parte against the respondent who on 12-5-1966 made an application for setting aside the said ex parte decrees. His applications, however, were dismissed vide orders dated 17-6-1968 by the learned Court which passed the aforementioned ex parte decrees. The respondent went in appeal but his appeals were also dismissed on 6-12-1968.
3. On 18-12-1968 Bashir Ahmad alias Faqiria respondent instituted two suits against the abovementioned appellants namely Noor Muhammad and Allah Ditta for declaration to the effect that the ex parte decrees dated 24-3-1966 were null and void against his rights as the same had been obtained through fraud and deceitful means. He claimed that he was the owner of the land in dispute and that he had never sold it to the appellants. The appellants contested the suit and on the basis of the divergent pleadings of the parties the following preliminary issues were framed on 11-3-1969:--
(1) Whether the suit is maintainable in its present form? OPP.
(2) Whether the suit is hit by the principle of res judicata? OPD.
4. The parties led their evidence on the above issues and the learned trial Court vide orders dated 9-7-1969 decided the above issues in favour of the respondent. The appellants lodged a revision petition in the High Court against the said findings of the learned trial Court. The High Court vide judgment dated 31-5-1972 confirmed the said findings of the learned trial Court on issue. No,1.
However, findings on issue No,2 were set aside and the learned trial Court was directed to decide the said issue alongwith the other issues on merits. On 22-10-1969 the learned trial Court framed the following issues in both the suits on merits:--
(1) Whether the ex parte decree in Suit No,73 dated 23-4-1966 was obtained fraudulently and collusively ,and by giving the wrong address of the plaintiff ? OPP.
(2) Whether the sale of suit land took place for consideration and with the knowledge of the plaintiff ? OPD (onus objected to).
(3) Whether the transaction in dispute is against Martial Law Regulation? If so, its effect? OPD.
(4) Relief.
' The following issue was added on 5-10-1987:- 3-A. Whether the defendant is owner of the suit land on the basis of adverse possession? OPD.
5. The parties led their oral as well as documentary evidence on the above issues. After considering the said evidence and hearing the parties' learned counsel the learned trial Court decreed the suits vide judgments and decrees dated 31-10-1987 finding issues Nos.1 and 2 in favour of the respondent, issue No,3 against him and issues Nos.3 and 3-A against the appellants. As regards preliminary issue No,2, it was held that the appellants had failed to substantiate their assertion by not producing any evidence and therefore the said issue was also found against them. Feeling aggrieved the appellants went up in appeal but their appeals were dismissed by the learned Additional District Judge, Gujrat vide judgment dated 3-4-1991. Still . Not satisfied the appellants have come up in regular second appeal.
6. I have heard the parties' learned counsel and have also gone through the record.
7. Both the learned Courts below have held that the respondent had not been served in the previous Suits (Nos.71 and 73 of 1966) instituted by the appellants and the ex parte decrees dated 24-3-1966 passed in the aforementioned suits against the respondent had been obtained through fraud and deceitful means and thus were liable to be set aside. It was further held that the disputed land was never sold by the respondent, who was its owner, to the appellants and the appellants had not paid any consideration for the alleged sales. Learned counsel for the appellants could not point out any infirmity in the said findings such as non-reading or misreading of evidence or misapplication of correct law. I have myself gone through the evidence on record and have come to an irresistible conclusion that the concurrent findings of fact recorded by the two Courts below on issues Nos.1 and 2 were unexceptionable and the same are hereby confirmed.
Findings of the learned Courts below on issue No,3-A and preliminary issue No,2 were not challenged, for, the appellants had not produced any evidence to prove that the matter directly and substantially in issue in the present suits was directly and substantially in issue in the previous suits. The question of fraud which was the most vital issue in the present suits did not find any mention in the previous suits. Further, it could not be said that the appellants had perfected their title through adverse possession because they came into possession of the disputed land in 1966 whereas the respondent through his suits asserted his right by questioning their claim of ownership in 1968.
8. The only contention which the learned counsel for the appellants raised in these appeals was that when the Courts below had held that the ex parte decree were the result of fraud and respondent/defendant had not been served the result would be that the old suits instituted by the appellants would stand revived. In this connection he relied on Ashrafilal Mahta and others v. Suraj Maya Mishrain AIR 1924 Patna 758(1). In the aforesaid case it was held that when a consent decree is set aside the parties would revert to their original rights and the Court would proceed with the original suit. He also relied on Lalji Thathera v. Ganga Thathera (AIR 1927 Patna 396) wherein it was held that the setting aside of the ex parte decree on the ground of fraud entitled the plaintiff in the original suit to have his suit reheard. In the light of the law laid down in the aforementioned authorities the learned counsel requested that the original Suits (Nos.71 and 73 of 1966) be ordered to be restored and reheard.
9. On the other hand learned counsel for the respondent controverted the contention raised by the learned counsel for the appellants and maintained that as the Courts below in the present cases had expressly held after recording the parties' evidence on issues Nos.1, 2 and 3-A that the ex parte decrees had been obtained through fraud, that in fact there was no sale from the respondent in favour of the appellants and that the appellants had not become the owners of the disputed land through adverse possession, the old cases could not be revived or reopened. In support of his argument he relied on a Full Bench decision of the Patna High Court Nirsan Singh v. Kishuni Singh AIR 1931 Patna 204(2). The question which has been raised in the present appeals also came up for consideration in the said case. It was held: "Now, as to whether when an ex parte decree in a subsequent suit is set aside, the original suit in which that decree was obtained is revived or not depends upon the pleadings, the issues and the actual decision in the subsequent suit. If upon an issue properly raised and tried in the subsequent suit it is held that the claim itself of the plaintiff in the original suit was false and fraudulent, the effect of such decision is to put an end to that suit, and the suit could not be revived and retried". It was further held: "If on the other hand the ex parte decree was set aside on the ground that it was obtained by suppression of summons by means of fraud and the defendant in the original suit was prevented from appearing in the suit and defending it by reason of fraud committed by the plaintiff, the first suit is revived and the plaintiff of that suit is entitled to have it tried and disposed of in accordance with law in spite of the fact that in the subsequent suit the Court went into the question as to the plaintiff's claim being false as a ground for holding that there was reason for him to obtain stealthily a decree behind the back of the defendant by fraudulently keeping him out of the knowledge of the suit and preventing him from defending the action". Learned counsel also referred to another judgment of Assam High Court Chandi Charan Pandit and others v. Sarat Chandra Sarma and others (AIR 1955 Assam 231).
In the said case also the same controversy was raised and resolved. Their Lordships considered the dictum laid down in the aforesaid case of Nirsan Singh, approved it and ultimately relied on it.
10. Perusal of the pleadings in the present suits which the respondent had instituted against the appellants and out of which the instant appeals have arisen shows that the respondent had categorically stated that he had not been served in the present suits; that he had not transferred the land in dispute to the appellants in any manner and that he had not received any consideration for the alleged sales. These assertions were specifically denied by the appellants in their written statements. In this view of the matter necessary issues were framed and the parties led their evidence on them. After considering the said evidence the learned Courts below have held that the respondent had not been served and decfees had been obtained through fraudulent means. It also held that the respondent had never sold the disputed land to the appellants and had also not received any consideration. In these circumstances, when the controversy between the parties has been effectively resolved by the Courts in the present suits, it would be futile to order the revival and rehearing of the previous suits. Consequently relying on the authorities cited by the learned counsel for the respondent I hold that the contention raised by the learned counsel for the appellants is without substance and the previous suits instituted by the appellants cannot be revived. Resultantly, I find no merit in these appeals which are dismissed with costs.