1. The subject-matter of this litigation is agricultural land being six survey numbers, one in village Agarkhed in the Bijapur District, one in village Nandgaon in the Belgaum District, three in village Satti also in the Belgaum District, and one in village Kupwad in the Dharwar District. Although in the view we take this litigation falls to be decided upon a comparatively narrow point, a description of the complicated facts and history is necessary. We are indebted to Mr. Coyajee, who has argued the appeal for the' appellant-plaintiff, for the very clear manner in which the facts and history have been placed before us. It is not now disputed that the six suit lands, which we understand are at inam lands, certain other lands in British India, lands in Mudhol and Jamkhandi States, and inam villages in Mysore State were the ancestral property of one Vasudevacharya, who died some time before 1853 A. D. The family tree of the descendants of Vasudevacharya is as follows:
VASUDEVACHABYA = VBNKUBAI
(clied before 1853)| (died 1878) 1
| | | |
Guracharya = Rukmiuibai alias Kristaoharya = (1) Giribai alias Narasinhacharya Subawa
(predeceased | Savitribai (died 1874) | Gangabai (predeceased (deceased
Vasudevacharya)| (deceased, date not | (died 1927) Vasudevacharya) date Not
| known) | (2) Yamunabai known)
Hayagriva deceased Rangacharya = Tanabai
(date not known) (alleged to have been | (deft. 2)
| adopted by Giribai in |
Subanacharya 1899, died 1906) |
(adopted in 1920, not heard of for |
some years, original deft. 8 but struck out as service Govind (deft. 1)
impossible) (alleged to be adopted by Tanabai in 1925)
2. Whether there was partition between the branches of Kristacharya and Hayagriva is one of the matters in dispute in the present litigation. The present plaintiff is Shamaji, the son of one Narayan or Naro Gopal Kulkarni of Satti village who was the clerk or agent of the family of one Girimallappa, whose heirs are defendants 5, 6 and 7. In the year 1891 Hayagriva purported to sell to Girimallappa the three Satti survey numbers and certain other lands not now in suit. According to the plaintiff this sale was benami for the benefit of Naro Kulkarni. In the year 1898 three Suits NOS. 494, 495 and 496 of that year, were instituted by Shivappa, the brother of Girimallappa (then deceased) in the Court of the Second Class Subordinate Judge, Athni, on the sale deed of 1891, seeking possession of the lands conveyed. The defendants in the suits were Giribai, Naro Kulkarni and certain tenants. Naro was joined as a sub-mortgagee from 'Venkubai, and it was averred by Shivappa that in the year 1895 Giribai had obtained a decree for possession against Naro. Naro did not appear in the 1898 suits. The contentions of Giribai were that Hayagriva had no right to sell as he had separated from his grandfather Vasudevacharya and had been given separate property in Mysore State, that the suit property had come to Kristacharya, and that after his death to Giribai. The trial Court found that Guraeharya died separate from his father, and on Vasudevacharya's death his estate including the suit lands was enjoyed by Kristacharya, and after Kristacharya's death by Giribai, and that Giribai was 'in adverse possession in her own proprietary right' for more than twelve years before the suits were filed. The trial Court dismissed the suits accordingly. Appeals were preferred by Shivappa to the District Court, and the judgment of Mr. Gloster, District Judge (Ex. 101) shows that Suit No. 494 related to land at Sanadi which is not now in suit, while Suits Nos. 495 and 496 related to the Satti lands in suit. The District Judge held on the evidence that no partition had taken place in the family of Vasudevacharya, but that the three Satti lands had been held adversely by Giribai for more than twelve years. He therefore dismissed the appeals relating to the Satti lands, but allowed Shivappa a decree for possession of the Sanadi land. A second appeal to this Court was dismissed.
3. On 7th April 1915, Hayagriva executed a sale deed in favour of Naro Kulkarni purporting to convey all the six lands now in suit for a consideration of Bs. 1500, of which Bs. 1000 was stated to be paid. The deed (Ex. III) 'recites that the lands were in the possession of Giribai 'for the purpose of potgi (maintenance), etc.' and Hayagriva undertook to make separate arrangements for her potgi, and to obtain and deliver possession to Naro Kulkarni, when the balance of Bs. 500 was to be paid. The document proceeds:
In case I do not do as said above, you are to take possession of the said lands after the death of the said Giribai... In case the said lands come to your possession after the death of Giribai, the 500 rupees are not to be paid.
4. On 5th May 1916, Naro Kulkarni obtained from Giribai two deeds. The first, a sale deed, conveyed the three Satti lands for a consideration of Rs. 1500. The deed recites:
I have received the said sum of Rs. 1500 through the Poona Bank, Hubli. The said lands are in my enjoyment for a long time adversely, and thus I have become the owner thereof.
The second deed was a relinquishment of the three lands at Nandgaon, Kupwad and Agarkhed, and it recites that Giribai has already received Rs. 600 in lieu of her maintenance rights and she, therefore, relinquishes her interests in the lands, which have been sold by Hayagriva to Naro. The document states that
they (the lands) are in my possession and enjoyment on account of my podgy (maintenance) from the family of my husband and these lands have been sold to you by Hayagrivacharya bin Gurucharya Garlpad, my husband's undivided nephew, and thereby you have become owner thereof.
These two documents also mention that Giribai has become old and wishes to go on pilgrimage. In the year 1908, however, Giribai had already sold the Kupwad land to the present defendants 3 and 4, and must have given possession to defendants- 3 and 4, for in the year 1920 the four sons of Naro filed a suit No. 64 of 1920, in the Court of the Second Class Subordinate Judge, Tasgaon, to recover possession of the Kupwad land from the present defendants 3 and 4 and a tenant. It was held, and the findings were confirmed in appeal, that Giribai's possession after her husband's death was adverse to Hayagriva, and that this adverse possession had ripened into the 'statutory title' of the defendants, and the suit was therefore dismissed. Mr. Coyajee in the course of his arguments has stated that he does not wish to press the appeal so far as the Kupwad land is concerned. It is claimed that possession of the other five suit lands was obtained by Naro either in 1915 or, at least, in 1916 following the documents executed by Giribai in Naro's favour, but, in view of the two suits next referred to, it would appear that this claim to possession by Naro must be confined to the Satti lands only.
5. In 1916 Naro filed a suit No. 92 of 1916, in the Court of the Second Class Subordinate Judge, Bijapur, against Tanabai, the adoptive mother of the present defendant 1. By this suit Naro sought possession of the Agarkhed land. Naro denied the adoption of Rangacharya by Giribai, and Tanabai resisted the suit on the ground of separation by Hayagriva from the family of Vasudevacharya, on the ground that Giribai's title by adverse possession had been upheld in the litigation of 1898, on the ground that the documents taken by Naro from Giribai had been taken from her in her extreme old age, and on the ground that Giribai had no right to alienate the land. Evidence was recorded in the case, but Naro, upon refusal of an application for adjournment did not appear further. The Subordinate Judge purported to decide the suit on its merits and held that Giribai had acquired title by adverse possession, that there was no evidence to show that Hayagriva, through whom it appears that Naro was then claiming, had any title to the property, and that therefore the plaintiff Naro was not entitled to possession. In 1924 Shamaji, the present plaintiff, filed a suit No. 270 of that year, in the Court of the Second Class Subordinate Judge, Athni, for possession of the Nandgaon land against Tanabai, claiming that this land had been assigned to Giribai for her maintenance, but that Giribai had given up her claim to this land for a consideration of Rs. 600 and had passed a deed of release in favour of Naro in 1916. Brothers of Shamaji were joined as defendants. Contentions similar to those raised in suit No. 92 of 1916 were raised by Tanabai who was defendant 1, and it was held that Hayagriva was not the owner of the land, that Giribai had not a life interest, nor was she in possession as owner, and that the plaintiff had no title to the property. The suit accordingly was dismissed.
6. In 1928 Govindacharya, the present defendant 1, filed suit No. 57 of 1928 also in the Athni Court. The judgment in that suit (EX. 198) shews that this suit related to the three Satti lands. By the suit Govindacharya claimed possession from the four sons of Naro 'Kulkarni on the basis of his adoption by Tanabai to Rangacharya, the adopted son of Kristacharya. He claimed that Hayagriva had never any interest in the suit lands, and that Giribai was not competent to alienate them. The then defendants contended that Kristacharya had died in union with Hayagriva, that Giribai had been in possession as owner until she sold the lands to Naro Kulkarni, and that Giribai had become owner by adverse possession after the death of her husband. They also disputed the adoptions of Rangacharya and the then plaintiff Govindacharya, and raised contentions as to limitation, res judicata and estoppel by reason of the decisions in the suits of 1898. It was held: (1) That Kristacharya died separate in estate from Hayagriva, (2) That Kristaeharya was the owner of the suit lands, (3) That the adoptions of Rangacharya and Govindacharya were proved, (4) That Giribai had not become owner of the suit lands by adverse possession and (5) That Govindacharya was entitled to possession. We understand that these findings were upheld in appeal. It is admitted that in execution proceedings following the decree Govindacharya obtained possession of the Satti lands. There was also litigation in the Athni Court and in the Courts of Jamkhandi and Mudhol States regarding other property of Vasudevacharya's family. As long ago as 1887 Giribai, with Rangacharya afterwards joined as co-plaintiff, filed a suit in the Mudhol Court against Hayagriva and others for possession of certain land in that State, and it was then held on Giribai's plea that Kristacharya and Hayagriva were separate, and Giribai and Rangacharya were allowed a decree for possession of certain of the lands claimed by them, the claim being rejected in respect of other lands which were found to be in the actual possession of Hayagriva. The decision was not given until the year 1902. This decision was largely relied upon by the Subordinate Judge, Athni, for his decision in suit No. 57 of 1928, when it was also held that the final decrees in the suits of 1898 were not binding upon Rangacharya or upon his adopted son Govindacharya.
7. Coming now to the present suit, which was filed in March 1939, plaintiff Shamaji, who was plaintiff in suit No. 270 of 1924, a co-plaintiff in suit No. 64 of 1920 and defendant 4 in suit No. 67 of 1928, has based his title upon the same grounds as it was sought to be based in these earlier suits. He denies the adoption of Rangacharya and Govindacharya, and claims that no partition took place in the family of Vasudevacharya. In case partition -is held proved, he claims title from Giribai, and assuming she had a life interest only, on her death in 1927 he claims title on the earlier sale from Hayagriva. Mr. Coyajee summarises his claim under four headings: (1) Title from Hayagriva on the basis of the sale-deed of 1891 to Girimallappa. This is in respect of the Satti lands only. (2) Title from Hayagriva on 'the basis of the sale-deed of 1915 in respect of all the suit lands. (3) Title from Giribai on the sale-deed (Satti lands) and relinquishment deed (other lands) of 1916. (4) Assuming plaintiff acquired no title from Giribai, yet on her death in 1927, Hayagriva acquired title as reversioner, and under Section 43, T. P. Act, 1882, plaintiff's title under the sale-deeds from Hayagriva ripened into full title. Plaintiff alleges his cause of action to have arisen in 1930 when 'the defendants dispossessed the plaintiff unlawfully.'
8. Defendant 1, the principal contending defendant, claims separation by Guracharya. He claims that Kristacharya enjoyed the suit property as his separate property from the year 1854, that Giribai had a life estate until her adoption of Rangacharya in 1899, that Rangacharya then held the property until hid death in 1906, and that his widow Tanabai (defendant 2) then had a life estate until her adoption of defendant 1 in 1925. He challenges the deeds upon which the plaintiff bases his title and claims that the suit is barred by res judicata and estoppel by reason of the several earlier suits. Defendant 2 supports the contentions of defendant 1. Defendants 3 and 4 claim inter alia that the suit as against them in i respect of the Kupwad land is barred by res judicata by reason of the decision in suit No. 64 of 1920 in the Tasgaon Court. As already stated, the claim against defendants 3 and 4 has been given up in argument by Mr. Coyajee. Defendants 5 and 6 deny the alleged benami nature of the sale-deed of 1891 and claim that as against them the point is concluded by the decision in a Suit No. 69 of 1915, in the Athni Court, relating to certain lands in Sanadi. The trial Court held against the defendants on their plea of res judicata, but decided that, as alleged by defendants 1 and 2, Kristacharya and Hayagriva were separate; that Hayagriva had no interest in the suit property; that the adoptions of Rangacharya and Govindacharya were proved; and that the sale of 1891 was not benami in favour of Girimallappa. On the question of limitation it held that Suit No. 57 of 1928 of the Athni Court in respect of the Satti lands 'extinguished' plaintiff's title in respect of these lands, and that the suit as regards the other lands was barred by limitation. The suit therefore was dismissed with costs.
9. As already stated, Mr. Coyajee in the course of his arguments gave up the claim to the Kupwad land. In respect of the Agarkhed and Nandgaon lands the relinquishment deed and also the sale-deed of 1915 show that Giribai did not claim more than that she was holding the lands for her maintenance. It is clear that the dispossession in 1930 set up as the plaintiff's cause of action was dispossession of the Satti lands and not dispossession of the Agarkhed and Nandgaon lands. In 1916 Naro, the father of the plaintiff, failed to obtain possession of the Agarkhed land and in 1924 the present ' plaintiff failed to obtain possession of the Nandgaon land. Both suits were against Tanabai, the present defendant 2, the adoptive mother of defendant 1, and were not against Giribai. Clearly the present suit filed in the year 1939 must fail in respect of these two lands on the ground of limitation alone, and at a later stage of his argument Mr. Coyajee stated that he also gave up his claims to the Agarkhed and Nandgaon lands. The learned Subordinate Judge decided the issue of res judicata against the defendants on the ground that Section 11, Civil P.C., 1908, requires that the Court which de-'fcided the suit pleaded as res judicata must have been a Court competent to try the subsequent suit, and the Courts which tried Suits NOS. 64 of 1920, 92 of 1916, 270 of 1924 and 57 of 1928 were all Courts of Second Class Subordinate Judges, while the present suit valued in the aggregate at more than Rs. 5000 is triable exclusively by a First Class Subordinate Judge. It is true that ordinarily the decision of an issue in a Court of lower pecuniary jurisdiction will not operate as res judicata in a subsequent suit filed in a Court of superior jurisdiction and triable only by such Court. As was said by the Privy Council in Kun Bahadur Singh v. Mt. Lucho Koer 11 Cal. 301
If this construction of the law were not adopted, the lowest Court in India might determine finally, and without appeal to. the High Court, the title to the greatest estate in the Indian Empire.
10. We think that the present is one of those, exceptional cases to which this rule will not apply. Apart from the fact that, as we understand, the decisions in all former suits were carried in appeal to this Court, the present is not an instance where defendants seek to rely upon a finding given in respect of a particular issue in an earlier suit, but is one where more than one set of defendants, having succeeded in properly constituted suits, now because of amalgamation by plaintiff of causes of action find themselves called upon to defend their titles against precisely the same attacks which failed in the earlier litigations. We can see no reason why this should be allowed. The present, moreover, is not merely a case of amalgamation, for by subsequent abandonment the subject-matter now in dispute is reduced to the three Satti lands which are identical with the subject-matter of Suit No. 57 of 1928, and the present appellant now seeks to succeed against the same parties and upon the same contentions as were impleaded and raised in the earlier suit. Turning to authority, there appears to be no reported case of this Court covering the point. There are several decisions of the other High Courts where it has been held that it is not open to a plaintiff to evade the bar of res judicata by joining several causes of action against the same defendant or defendants in a subsequent suit instituted in a Court of higher pecuniary jurisdiction. It has also been held that where a decision has been given by a competent Court in a previous suit, regarding part of the claim in the subsequent suit, and between the same parties, then so much of the claim, which is common to the two suits, should be excluded from the subsequent suit as barred by the principle of res judicata. We may refer to Bhugwanbutti Chowdhrani v. Forbes ('01) 28 Cal. 78 to observations in Inder Singh v. Mian Singh A.I.R. 1935 Lah. 391 to Tamiz-un-nissa Bibi v. Muhammad Husain : AIR1928All714 to Priyanath y. Kalicharan : AIR1932Cal162 and to Mangan Lal v. G.I.P. Railway Co. A.I.R. 1924 All. 849. We consider, therefore, that the claim to the Satti lands is barred by the decision upon the identical claim made to these lands in Suit No. 57 of 1928, that the plaintiff-appellant must fail, and that this appeal must be dismissed with costs.