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Digambarrao Hanmantrao Deshpande Vs. Rangrao Raghunathrao Desai - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai
Decided On
Case NumberFirst Appeal No. 112 of 1946
Judge
Reported inAIR1949Bom367; (1949)51BOMLR623
AppellantDigambarrao Hanmantrao Deshpande
RespondentRangrao Raghunathrao Desai
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 11-transfer of property act (iv of 1882), section 52-rule of res judicata and rule of lis pendens-conflict between-which rule to prevail.;the rule of res judicata prevails over the doctrine of lis pendens, and once a judgment is duly pronounced by a competent court in regard to the subject-matter of the suit in which the doctrine of lis pendens applies, that decision is res judicata, and binds not only the parties thereto but also the transferees pendente lite from them.;official assignee of calcutta v. jagabandhu mallik (1934) i.l.r. 61 cal. 494 lockyer v. ferryman (1877) 2 app. cas. 519 bellamy v. sahine (1857) 1 de g. & j. 566 and faiyaz husain khan v. prag narain (1907) i.l.r. 29 all, 339 s.c. l.r. 34 i.a. 102 : s. c. 9 bom. l.r. 656.....bhagwati, j.1. this is a first appeal from a decision of the civil judge, senior division, at hubli, who dismissed the plaintiff's suit.2. the suit came to be filed by the plaintiff under the following circumstances. the plaintiff's father initiated a suit, being suit no. 438 of 1911, in the first class subordinate judge's court at dharwar, by filing a pauper petition no. 5 of 1910 against his brother laxmipati and others including one hanmant krishna deshpande who was defendant no. 21 in the suit. the suit was a suit for partition claiming a half share in the ancestral properties, the properties included in the suit being survey nos. 49, 52, 116, 17 and 20. this suit had a chequered career 'as appears from the judgment delivered by this court in digambar hanmant v. shrinivas laxmipatirao.....
Judgment:

Bhagwati, J.

1. This is a first appeal from a decision of the Civil Judge, Senior Division, at Hubli, who dismissed the plaintiff's suit.

2. The suit came to be filed by the plaintiff under the following circumstances. The plaintiff's father initiated a suit, being suit No. 438 of 1911, in the First Class Subordinate Judge's Court at Dharwar, by filing a pauper petition No. 5 of 1910 against his brother Laxmipati and others including one Hanmant Krishna Deshpande who was defendant No. 21 in the suit. The suit was a suit for partition claiming a half share in the ancestral properties, the properties included in the suit being Survey Nos. 49, 52, 116, 17 and 20. This suit had a chequered career 'as appears from the judgment delivered by this Court in Digambar Hanmant v. Shrinivas Laxmipatirao (1937) F.A. No. 84 of 1934, decided by 1937 (Unrep.). The plaintiff's father having died in the meanwhile the plaintiff filed and prosecuted the appeal, and it appears that on December 15, 1937, a decree was passed by the Appeal Court in terms of the compromise which had been arrived at between the plaintiff and defendant No. 21 Hanmant Krishna Deshpande, who was respondent No. 18 in the appeal, under which the plaintiff was declared to be the full owner of survey Nos. 49, 52,116,17 and 20.

3. There had been in the meantime another series of litigation to which the plaintiff's father and his brother Laxmipati were parties. A suit being suit No. 551 of 1910 had been filed in the Second Class Subordinate Judge's Court at Hubli by one Padmawa the daughter of one Hanmant against the plaintiff's father, his brother Laxmipati and the heirs of Bistawa and Balawa who were the two sisters of Padmawa. Padmawa had a one-third share in the properties, the subject-matter of the suit, having inherited them as the heir of her deceased father Hanmant after the death of her mother(Jangabai. She had also purchased the one-third share of her sister Balawa, with 'the result that in that suit she claimed a two-thirds share in the suit properties. These suit properties were again the very same survey Nos. 49, 52, 116, 17 and 20 and were claimed by Padmawa as belonging to the estate of her deceased father. The plaintiff's father and his brother Laxmipati claimed to be the owners of these properties by adverse, possession. Hanmant Krishna Deshpande, defendant No. 21, in suit No. 438 of 1911 in the First Class Subordinate Judge's Court at Dharwar, was defendant No. 7 in this suit, he having purchased the one-third share of Bistawa the other sister of Padmawa. It appears-that Hanmant Krishna Deshpande relinquished his one-third share in the properties of Hanmant the father of Padmawa, Bistawa and Balawa in favour of one Bhimaji Shivaji and Bhimaji Shivaji also purchased Padmawa's interest in these-properties which had comprised not only her one-third share therein but the one-third share of Balawa which she in her turn had purchased. The result was that Bhimaji Shivaji became the absolute owner of the whole of the interest in the suit properties and he prosecuted the suit in his capacity as such owner against the plaintiff's father and his brother Laxmipati who were claiming these properties by adverse possession. In that suit Bhimaji Shivaji obtained a decree on August 4, 1915, declaring him to be the absolute owner of these properties as against the plaintiff's father and his brother Laxmipati. In execution of this decree Bhimaji Shivaji obtained possession of the suit properties and in 1917 made a gift of the same to Laxmipati's wife by name Tungabai. After Bhimaji Shivaji's death Hanmant defendant No. 1 who was his undivided nephew filed a suit being suit No. 78 of 1928 for possession of the suit properties against Tungabai and obtained possession of the same on March 17, 1984. Defendant No. 1 continued in possession of the suit properties from March 17, 1934, until June 11, 1941, when he was dispossessed of the same under the cicumstances hereinafter stated.

4. As already stated before, under the terms of the compromise decree obtained on December 15, 1937, in Digambar Hanmanfs case in appeal from the decree passed by the First Class Subordinate Judge's Court at Dharwar in suit No. 438 of 1911, the plaintiff had been declared the owner of the suit properties as against defendant No. 21 Hanmant Krishna Deshpande, respondent No. 18 in the appeal. In execution of that decree which he obtained on December 15, 1937, the plaintiff filed a darkhast being Darkhast No. 131 of 1939 against the present defendants and in execution of that darkhast got possession of the suit properties on June 11, 1941. A civil revision application was filed by defendant No. 1 being Miscellaneous No. 36 of 1941 on July 21, 1941, for restoration of possession of the properties. That was, however, filed beyond the period of 30 days, with the result that it was liable to be dismissed. Defendant No. 1 therefore on April 14, 1942, filed a purshis to the effect that even though he was not himself a party to the decree in execution of which possession was taken, he was the legal representative of the parties to the decree. He stated that Hanmant Krishna Deshpande who was a party to the decree had sold the lands to Bhimaji Shivaji after the institution of the suit, that he claimed through Bhimaji Shivaji, that he had actually taken possession of the lands from Tungabai Laxmipati who was also a party to the suit in which the decree under execution was passed, and that he being a transferee pending litigation was under the law as interpreted in Bombay a party to the decree. An order was made on this application on April 1(5, 1942, by the learned Joint First Class Subordinate Judge holding that there was no legal objection why he should not treat the application as one under Section 47 of the Civil Procedure Code and further holding that the application was within time as it had been filed within three years from the date of dispossession. The application was then dealt with on the merits and an order was passed by him on April 16, 1942, to the effect that the decree of which execution was sought did not provide that the decree-holder should obtain possession of the suit properties from the judgment-debtor, that it was a mere declaratory decree and that therefore the plaintiff was not entitled to possession of the suit properties in execution of the decree. A civil revision application, being Miscellaneous No. 876 of 1942, was filed for the purpose of amending the decree which had been obtained by the plaintiff on December 15, 1937, and a First Appeal No. 208 of 1942 was also Held by him against the order dated April 16, 1942. This Civil Revision Application No. 867 of 1942 was dismissed on July 24, 1944, and in the result the plaintiff also withdrew the First Appeal No. 208 of 1942 which he had filed. The plaintiff ultimately filed the present suit on September 25, 1944, for an order and injunction against the defendants restraining defendant No. 1 permanently from taking possession of the suit properties from the plaintiff and further and other reliefs.

5. A written statement was filed by defendant No. 1 in which he contended that the decision in suit No. 551 of 1910 barred the plaintiff's present suit as res judicata and that the plaintiff was not entitled to any relief as prayed.

6. On these pleadings the suit came on for hearing before the learned Civil Judge, Senior Division, at Hubli. Various issues were raised amongst which were the following issues :

(6) Whether the present suit is barred as res judicata having regard to the decision in suit No. 551 of 1810?

(8) Whether the defendants have perfected their title by adverse possession ?

(12) Whether the decree in suit No. 551 of 1910 bars the present suit as res judicata and

(16) Whether the decision in suit No. 438 of 1911 bars the present suit as res judicata ?

Even though it had been contended by defendant No. 1 in his written statement that the compromise entered into between the plaintiff and Hanmant Krishna Deshpande was tainted by fraud and could not be binding on defendant No. 1, no issue was raised in respect of the same. After hearing the evidence adduced before him the learned Judge came to the conclusion that the decision in suit No. 438 of 1011 did not bar the present suit as res judicata but the decree in suit No. 551 of 1910 barred the present suit as res-judicata. On issue No. 8, viz. whether the defendants had perfected their title by adverse possession, he did not consider it necessary to go into the same and the answer to that issue was 'unnecessary.' The learned Civil Judge having come to the conclusion that the decree in suit No. 551 of 1910 barred the present suit as res judicata eventually dismissed the plaintiff's suit. This appeal was filed by the plaintiff against that decision of the learned Civil Judge.

7. Mr. Parulekar appearing for the appellant has very strenuously contended before us that defendant No. 1 having taken up a particular stand in the purshis which he had filed in Miscellaneous No. 36 of 1941 on April 14, 1942, and having obtained a decision of the Court in his favour on the strength of the statements therein contained could not now be heard to urge anything to the contrary. He could not be allowed to approbate and reprobate and now contend that he was not the transferee pendente lite from Hanmant Krishna Deshpande. He urged that if defendant No. 1 was the transferee pendente lite from Hanmant Krishna Deshpande, he, defendant No. 1, was bound by the compromise decree which was passed in Digambar Hanmant's ease on December 15, 1987, and if that was so, there was no question of his being entitled to possession of any of the suit properties, but on the contrary the plaintiff who had been declared the owner of the suit properties under the terms of the compromise decree was entitled to possession of the suit properties and was entitled to the reliefs which he had prayed for in the present suit.

8. The answer to this contention of Mr. Parulekar which was given by Mr. K.G. Datar appearing for defendant No. 1 was that where there was a conflict between res judicata and lis pendens, lis pendens gave way and the principle of res judicata reigned supreme. He urged that in suit No. 51 of 1910 above referred to the plaintiff's father and his brother Laxmipati as also Hanmant Krishna Deshpande and his transferee pendente lite Bhimaji Shivaji through whom defendant No. 1 claimed were all parties and they were also parties to suit No. 488 of 1911. There was thus litigation in respect of the very same properties between the same parties or their reprcscntatives-in-intcrcst and the decision in suit No. 551 of 1910 was reached on August 4, 1915, long before any decision in respect of the same properties was reached in suit No. 488 of 1911. The position in law, therefore, was that under Explanation 1 to Section 11. of the Civil Procedure Code, suit No. 551 of 1910 having been decided prior to suit No. 438 of 1911, the decision in suit No. 551 of 1910 became res judicata. He further urged that the decision in suit No. 551 of 1910 having thus become res judicata, the terms of the compromise decree arrived at in Digambar Hanmants case had not the effect of abrogating or in any manner whatsoever modifying the terms of the decree in suit No. 551 of 1910 even though there may have been a transfer pendente lite of the right, title and interest of Ilanmant Krishna Deshpande in the suit properties as they were the subject-matter of suit No. 438 of 1911.

9. On, the record as it stands before us we have not been able to appreciate definitely whether all the properties being survey Nos. 49, 52, 116, 17 and 20 were the subject-matter of both the series of litigation. We shall, however, proceed upon that basis as all the arguments addressed by the learned advocates before us were addressed to us on that assumption. It may be noted, however, that in so far as suit No. 438 of 1911 was concerned it was for obtaining a one-half share in these properties which were described as the ancestral properties as between the plaintiff's father on the one hand and his brother Laxmipati and Hanmant Krishna Deshpande on the other. How Hanmant Krishna Deshpande came to claim these properties or a share therein and what, if any, was his interest in the suit properties, we have not been able to exactly understand. The terms of the compromise decree dated December 15, 1987, however, declared the plaintiff as the absolute owner of these suit properties and we can only take it that by some manipulation or other it came about that the plaintiff was declared the sole owner of these properties. The claim of the plaintiff's father and his brother Laxmipati on the other hand in suit No. 551 of 1910 was that they had acquired all the suit properties by adverse possession. Whether it was a claim by their joint family against outsiders claiming to be the owners of these properties by adverse possession or it was a claim by them in their individual capacitities, it is also difficult to understand. The fact, however, remains that the very same properties appear to have been claimed by both of them by adverse possession. Whatever may be the exact nature of the claim of Hanmant Krishna Deshpande in these properties, the fact also remains that he was a party to suit No. 438 of 1911 and he was also a party, being the purchaser of the one-third share of Bistawa in the suit properties in suit No. 551 of 1910. As a matter of fact by reason of the various transfers and assignments of the respective shares of Padmawa, Bistawa and Balawa in the suit properties, Bhimaji Shivaji came to be the absolute owner of the suit properties and claimed the same as such against the plaintiff's father and his brother Laxmipati, with the result that in suit No. 551 of 1910 also the contest was between the plaintiff's father and his brother Laxmipati on the one hand and Bhimaji Shivaji who was inter alia the representative-in-interest of Haiimant Krishna Deshpande on the other. After the contest the decree was obtained by Bhimaji Shivaji on August 4, 1915, in suit No. 55.1 of 1910 and possession was also obtained by him of the suit properties in execution of that decree before he made a gift of the same to Laxmipati's wife Tungabai. Defendant No. 1 obtained possession of the suit properties from Tungabai claiming to be the undivided nephew of Bhimaji Shivaji and thus claiming to be his representative-in-interest. Defendant No. 1 thus was the representa-tive-irt-interest of Hanmant Krishna Deshpande who was a party to the suit No. 551 of 1910 and that is the position which he took up in the purshis which he filed on April 14, 1942. If he was the representative-in-interest of Hanmant Krishna Deshpande so far as suit No. 551 of 1910 was concerned, he also became a represcnta-tive-in-interest of Hanmant Krishna Deshpande in suit No. 438 of 1911, because whatever right, title and interest Hanmant Krishna Deshpande claimed in the properties the subject-matter of suit No. 438 of 1911 was the subject-matter of the transfer pendente lite, in favour of Bhimaji Shivaji by Hanmant Krishna Deshpande and defendant No. 1 claimed through Bhimaji Shivaji. The position therefore was that even though, so far as suit No. 438 of 1911 was concerned, defendant No. 1 occupied the position of a third party who had during the pendency of that suit obtained a transfer of the right, title and interest of Hanmant Krishna Deshpande in the suit properties, so far as suit No. 551 of 1910 was concerned he was not a transferee but a party to the suit through his predecessor-in-interest Bhimaji Shivaji. There was an adjudication of the respective rights of the parties in suit No. 551 of 1910 and that decision was reached by the Court after fully hearing the parties and was capable of barring any other suit in. respect of the same properties as res judicata. Once that decision was reached, there was a bar by reason of the provisions of Section 11 'of the Civil Procedure Code to any Court deciding the same issue over again and it was not competent after August 4, 1015, to the First Class Subordinate Judge's Court at Dharwar to try suit No. 488 of 1911 and decide the same questions over again as to whether the plaintiff's father, his brother Laxmipati and/or Hanmant Krishna Deshpande had any interest in the properties the subject-matter of that suit. No doubt the transfer by Hanmant Krishna Deshpande. of his right, title and interest was made to Bhimaji Shivaji during the pendency of the suit and therefore the operation, of the doctrine of Us pendens was invited. But once the issue as to the right, title and interest of the respective parties in the suit properties became res judicata by reason of the decision reached in suit No. 551 of 1910 on August 4, 1915, there was nothing more to be done by any Court so far as the parties themselves and their representatives-in-iiiterest were concerned. There was no Us left and the cause of action in the Us pendens which was there was effectively merged in the decision which had been reached in suit No. 551 of 1910.

10. Mr. K.G. Datar in this behalf drew our attention to a decision of the Calcutta High Court reported in Official Assignee of Calcutta v. Jagabandhu Mallik I.L.R. (1934) Cal. 494 There the conflict was between lis pendens on the one hand and constructive res judicata on the other. The Courts below had found that the rule of constructive res judicata applied and they also referred in their respective judgments to the question of the applicability of the doctrine of lis pendens. The trial Court refused to allow the question of lis pendens to be raised on the ground that no such ease had been set up in the plaint, and accordingly dismissed the suit; but the lower appellate Court allowed the question to be raised as all. necessary facts had been stated in the plaint, and! holding that the doctrine of Us pendens should prevail over the rule of constructive res judicata, allowed the appeal and decreed the plaintiff's suit. It appears to have been conceded before the High Court that the view of the lower appellate Court that the doctrine of Us pendens should prevail over the rule of constructive res judicata could not be supported and the decision of the learned Judges was based only on the question whether the rule of constructive res judicata, applied to the case or not.

11. Even though this conflict between the doctrine of lis pendens and the rule of res judicata. appears to have been resolved in that case before the learned Judges of the Calcutta High Court by a concession made by counsel, we think that the concession was rightly made. Res judicata means a matter adjudicated upon or a matter on which judgment has been pronounced. The rule of res judicata has been put on two grounds, the one the hardship to the individual that he should be vexed twice for the same cause, and the other, public policy, that it is in the interest of the State that there should be an end of litigation. (See Lockyer v. Ferryman (1877) 2 App. Cas. 519. The rule is based on this principle that the cause of action which would sustain the second suit does not any more survive, it being merged in the judgment of the first. It is well established that every suit has got to be sustained by a cause of action, and if by the decision reached in the first suit, meaning thereby a previously decided suit, the cause of action no more survives, being merged in the judgment, where could be the cause of action left which would sustain the second suit after the decision was reached in the first suit Up to the time the decision was reached in the first suit it would be possible to say that there is a cause of action which could sustain both the suits. The suits are pending and the cause of action can be litigated between the contesting parties. Once, however, the cause of action ceases to exist being merged in a judgment duly pronounced by a Court, the decision reached in that suit becomes res judicata. The cause of action which till then sustained the second suit does not survive any more and no Court after such decision has been reached by a competent Court in the previously decided suit would under the provisions of Section 11 of the Civil Procedure Code or otherwise on general principles would try any suit in which the same cause of action is contested between the same parties or parties under whom they or any of them claim litigating under the same title. The matter would be concluded between the parties, provided of course, the matter in issue was directly and substantially in issue in the previously decided suit. If it was only collaterally in issue, it would not be res judicata. Subject to this and other conditions which have been laid down in Section 11 of the Civil Procedure Code a decision reached in the previously decided suit would be res judicata and there will be no question whatever of the same matter being litigated over again in the second suit which, as has been observed above, would not be capable of being sustained any further by reason of the cause of action having merged in the judgment pronounced in the previously decided suit. This is the rule of res judicata.

12. Lis pendens is an action pending and the doctrine of lis pendens is that an alienee pendente lite is bound by the result of the litigation. As Lord Justice Turner said in the leading case of Bellamy v. Sabine (1857) 1 De G& J. 566 (pp. 578, 584) :

It is, as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation,-that it would plainly be impossible that any action ol1 suit could be brought to a successful termination, if alienations pendente the were permitted to prevail. The Plaintiff would be liable in every case to be defeated by the Defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding.

The Privy Council also has adopted the same principle in Faiyaz Husain Khany. Prag Narain I.L.R. (1907) All. 339 : L.R. 34 IndAp 102 : 9 Bom. L.R. 656 where they lay stress on the necessity for final adjudication and observe that otherwise there would be no end to litigation and justice would be defeated. This doctrine of lis pendens is expounded in Story's Equity Jurisprudence, Vol. I, Section 406, in the terms following :

Ordinarily, it is true, that the decree of a court binds only the parties and their privies hi representation or estate. But he who purchases during the pendency of a suit, is held bound by the decree that may be made against the person from whom he derives title.... Where there is a real and lair purchase, without any notice, the rule may operate very hardly. But it is a rule founded upon a great public policy; for otherwise, alienations made during a suit might defeat its whole purpose, and there would be no end to litigation. And hence arises the maxim, pendents lite, nihil innovetur; the effect of which is not to annul the conveyance, but only to render it subservient to the rights of the parties in the litigation. As to the rights of these parties, the conveyance is treated as if it never had any existence; and it does not vary them.

13. It is also settled law that in the absence of fraud or collusion the doctrine of Us pendens applies to a suit which is decided ex parte or by a compromise. If the compromise has not been fairly and honestly obtained, the suit which ended in a compromise will not operate as lis pendens. This is the doctrine of lis pendens.

14. These principles are quite clear, and we have got to determine whether in the event of a conflict arising between the rule of res judicata and the doctrine of lis pendens either the one or the other should prevail. As has been observed before, the rule of res judicata rests on the necessity of having a finality in litigation, and so does the doctrine of Ks pendens. Both have the same end in view, the former that as between the same parties, or their representatives-in-interest litigating under the same title, once the decision is reached in a suit, the same question shall not be canvassed in any other suit, and the latter that whatever the party may choose to do by way of transfers pendente lite, the transferee pendente lite shall be bound by the result of the litigation. There is, however, this difference between the two that the rule of res judicata is concerned with more actions than one, whereas the doctrine of Us pendens is concerned with the very same suit during the pendency of which there is an alienation of the right, title and interest of one of the parties thereto. In the ease of res judicata the same cause of action may sustain various actions simultaneously, but once the cause of action is merged in the judgment pronounced in a previously decided suit, there is no cause of action left to sustain the second suit. In the case of lis pendens, however, the cause of action continues as it was, sustaining the suit which has been filed for the adjudication of the rights of the various parties thereto and the doctrine applies during the pendency of that suit sustained on that cause of action. Whatever be the transfers pendente lite, they do not affect the result of the litigation quae the parties to the suit, and the transferee pendente lite is bound by the result of that litigation, irrespective of whatever has happened between his transferor and himself. Once, however, even in the case where the doctrine of Us pendens applies a judgment is pronounced and the cause of action is merged in the judgment, that judgment is the final pronouncement which binds not only the parties to the suit but also the transferees pendente lite from them. The conveyance is treated as if it never had any existence. As Story has put it in the passage above quoted, the effect of it is not to annul the conveyance but only to render it subservient to the rights of the parties in the litigation. Whether this decision is reached in the same suit or in a different one and whether the cause of action which sustained the suit in which the doctrine of lis pendens applies was merged in the judgment pronounced in the very same suit or in another one, the position would be that that decision would determine the rights of the parties and would be binding on them as well as the transferees pendente lite from them. The transferee pendente lite would be legitimately treated as the representative-in-interest of the parties to the suit and the judgment which has been pronounced, whether in the same suit or in another, would be determinative of the rights of the parties. There would be then no lis or action which would survive. The lis or action can only be sustained by a cause of action. If the cause of action was merged in a judgment duly pronounced by a competent Court, there would be no more occasion for any Us to continue pending. If a judgment duly pronounced on that particular cause of action was to merge the cause of action in itself, that judgment would govern the rights of the parties, whether it is pronounced in the same suit in which the doctrine of lis pendens applies or in any other. If it is in the same suit, there would be no question of the applicability of the rule of res judicata. The rule of res judicata would come into operation only if it was pronounced iri another suit which came to be decided earlier than the one in which the doctrine applied. But once that judgment was pronounced it would have the effect of finally determining the rights of the parties and the cause of action which would sustain the suit in which the doctrine of lis pendens applied would be merged in the judgment duly pronounced in what may be described as the previously decided suit. In our opinion, therefore, the rule of res judicata prevails over the doctrine of lis pendens and we have come to the conclusion that once a judgment is duly pronounced by a competent Court in regard to the subject-matter of the suit in which the doctrine of lis pendens applies, that decision is res judicata and binds not only the parties thereto but also the transferees pendente lite from them.

15. Under the circumstances of the case before us, there is no getting away from the conclusion that the decision in suit No. 551 of 1910 was a decision in respect of the right, title and interest of the parties thereto in the suit properties which were matters directly and substantially in issue in that suit which was a previously decided suit and was therefore res judicata and barred the decision of the same matters which were directly and substantially in issue in suit No. 438 of 1911 between the same parties or between parties under whom they claimed and litigating under the same title. After August 4, 1915, there was no question of the applicability of the doctrine of lis pendens and the matters were concluded between the parties or their representatives-in-interest, so far as the question of the right, title and interest of the respective parties in the suit properties was concerned. The matter could not be any further canvassed in suit No. 438 of 191.1 or the First Appeal No. 84 of 1934 there from, and whatever was done by the parties thereafter in that suit was of no consequence whatever. The compromise decree which was obtained on December 15, 1037, in Digambar Hanmants case First Appeal No. 84 of 1934 had not the effect of in any manner whatever modifying the rights of the parties as they had been declared by the judgment duly pronounced in suit No. 551 of 1910 on August 4, 1915.

16. In view of the conclusion above reached, we think it unnecessary for us to go into the further question whether the compromise decree dated December 15, 1937, in Digambar Hanmants case was obtained by fraud or collusion or whether the defendants had perfected their title by adverse possession. Whatever be the rights of the parties in respect of the said matters may be the subject of further litigation between the parties if they are so advised. We are not concerned with the same in this appeal before us. The only question which we have got to consider is whether the decree in suit No. 551 of 1910 bars the present suit as res judicata, and we have come to the conclusion that so far as this question is concerned, the decision reached by the learned Civil Judge in that behalf was right.

17. In the result, the appeal fails and will be dismissed with costs, one set allowed.

Dixit, J.

18. I agree. The point to be decided is : When there is a conflict between the rule of res judioata and the doctrine of Us pendens, which of the two should prevail.

19. As far as I am aware, there does not seem to be any decided case of this Court upon the point and none of the advocates has been able to discover any.

20. Now, the rule of res judicata enacted in Section 11 of the Code of Civil Procedure is based upon the consideration of the hardship to the individual and also upon the larger consideration of public policy. The doctrine of lis pendens enacted in Section 52 of the Transfer of Property Act is, I think, based upon expediency, that is, upon the consideration of hardship that may be caused to a party by the opposite party transferring the property pending the suit so as to defeat the right of the first party. The principles underlying these sections have been stated in the leading cases referred to by my learned brother and it is, therefore, unnecessary to reproduce them again. The position then is that while res judicata prevents the Court from entering into an enquiry as to any matter already adjudicated upon, lis pendens really affects the transferee pendente lite.

21. I think, therefore, that when the conflict arises, the rule of res judicata should prevail.


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