1. This appeal has been filed by the plaintiff whose suit for possession as mut-walli of properties described in List (d) of the plaint was dismissed by the learned Civil Judge of Aligarh on 24th October 1939. On 16th April 1909 one Abdul Latif Khan made a wakf in favour of certain charities. The deed of wakf is at p. 37 of our paper-book. In the deed it was provided that in his lifetime Abdul Latif Khan was to act as mutwalli of the wakf property. After his death his uncle Mohammad Abdul Ghafur Khan was to nominate the next mutwalli. In case Abdul Ghafur Khan predeceased Abdul Latif Khan or failed to appoint anyone as mutwalli, Kunwar Abdul Shakur Khan, another uncle of the wakif, and Mohammad Obedullah Khan, his uncle's son, were to be mutwallis and after the death of one mutwalli the other was to act as such. Abdul Latif Khan died on 7th September 1909. On 10th October 1909, under the powers given in the deed of wakf, Kunwar Mohammad Abdul Ghafur Khan appointed Abdul Shakur Khan and Mohammad Obedullah Khan as mutwallis in accordance with the provision contained in the wakf deed. The said deed of appointment is at p. 51 of our paper-book. Abdul Shakur Khan did not, however, accept the office, but Obedullah Khan accepted the office of mutwalli and executed a deed of acceptance on 10th October 1909 which is at p. 49 of the printed record.
2. The plaintiff Obedullah Khan's case is that as the mutwalli, duly appointed under the deed dated 10th October 1909, he is entitled as such to the possession of the property in suit. On the death of Abdul Latif Khan in 1909 the heirs of Abdul Latif Khan applied for mutation of their names in the village paper in place of the name of Abdul Latif Khan deceased. It appears that Abdul Latif had not during his lifetime got his name removed and the name of the wakif substituted in place of his name. Obedullah Khan objected to the mutation of names in favour of the heirs, but later withdrew his objection, and we have the order of the Assistant Collector dated 26th April 1910 which mentions that Kunwar Mohammad Obedullah Khan had withdrawn his objection on the allegation that if the heirs of the deceased objected to the wakf, mutation of names might be effected on the ground of inheritance though he added it was likely to ruin the property. The Assistant Collector directed that the names of Mt. Mumtazunnisa Begam and Asghari Begam, the two widows of Abdul Latif Khan, be mutated over one-eighth, the name of Mt. Saidunnisa, the daughter, over a half share and the name of Abdul Ghafur and Abdul Shakur, the uncles, over a S/8th share in the property. The names were recorded in the village papers in accordance with the order of the Assistant Collector. On 31st July 1916 the first litigation with respect to the property in suit was started. Better to understand the litigation between the various members of the family the following pedigree will be found helpful:
THAKUR ZAHUR ALI KHAN |_________________________________________________________| | | | |Abdul Rahman Abdulla Abdul Rahim Abdul Ghafur Abdul Shakur Khan Khan Khan=Khadija Khan, died Khan, died | | Begam (no issue) 23-12-1910 1-8-1915| Obedullah Khan =Biamilla =Sharifunnissa| plff.=Rabia Begam Begam (no issue) || (Dead) || || _________________________________________| | | | || Abdul Jalil Abdul Jamil Abdus Salam Abdul Khalil________________ Khan, deft.1 = Khan, deft. 2 Khan, deft. 3 Khan (Dead)| | | Masarratunissa = Saidun- (No issue)Abdul Latif Rabia Abdul Aziz deft. 4, died nissa, deft. 5,Khan, died Begam Khan, died 3-12-'39 died 4-5-19417-9-1909= 28-7-1897= | |Mumtazunnissa Asghari Begam | |Begam died. (she subse- | |Asghari Begam quently married _________ _______________________(2nd wife) Abdul Latif | | | | | | Khan) Afsar Ghulam Abdus Abdul Shamsunnissa| Jahan Waris Sami Hamid Khan Saidunnissa | Begam Khan Khan Begam, deft. 5, Masarratunnissa died 4-5-1941 Begam, deft. 4, born 21-6-1897, died 3-12-1939
3. On 8lst July 1916 a Suit No. 256 of 1916, was filed by Abdul Jalil Khan, Abdul Jamil Khan Abdus Salam Khan and Abdul Khalil Khan, the four sons of Abdul Shakur Khan, Mt. Saidunnisa, minor daughter, and Asghari Begam, the widow of Abdul Latif Khan, and Mt. Bismilla, the widow of Abdul Ghafur, another uncle of Abdul Latif. This suit related to a share in two villages, Kakethal and Chakethal. The shares in these two villages were acquired under various auction sales in the name of Obedullah Khan by Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan. Before his death Abdul Latif Khan had made a wakf of his property on 16th April 1909 and he included in the wakf his share in the two villages, Kakethal and Chakethal. The plaintiffs claimed that after the death of Abdul Latif they, along with the defendants other than Obedullah Khan, were the owners of his share in the villages, Kakethal and Chakethal, two of the villages out of twenty-six now m suit, and were in possession thereof as owners, that Obedullah Khan was interfering with their possession and they prayed for an injunction against Obedullah Khan restraining him from any interference with the proprietary possession of the plaintiffs. The allegation of the plaintiffs in para. 16 of the plaint was that the shares claimed in the two villages belonged to Abdul Latif Khan and the waqfnama dated 10th April 1909 was a farzi document and all the proceedings relating-to the execution of the aforesaid waqfnama were taken by Abdul Jalil Khan in consultation with Obedullah Khan, who also had now admitted that the waqf was farzi and had relinquished all claims under the said waqf. The suit was resisted by Kunwar Obedullah Khan. The written statement filed by him is not in our printed record, but it appears from the judgment of the learned Second Additional Subordinate Judge of Aligarh that Obedullah Khan had contended that he was the real purchaser of the property and was in possession of it as such and the suit was barred by Section 66, Civil P.C., and Section 42, Specific Relief Act. As regards the waqf he alleged that when he attested the waqfnama he was not aware of the contents of the deed and pleaded that the plaintiffs had all along admitted that he, Obedullah, was the owner of the property. He raised other pleas which are not set out in detail in the said judgment. As regards the property not included in the waqf it is no longer disputed that Obedullah Khan was merely a benamidar for Abdul Latif Khan, Abdul Aziz Khan and Abdul Shakur Khan. As regards the share included in the waqf, the learned Additional Subordinate Judge framed an issue which was issue No. 11 and was as follows : 'Whether the waqfnama executed by Abdul Latif was a genuine transaction or was it only a nominal one?' On this issue he recorded a finding that the waqf was valid and was not a mere paper transaction. The learned Judge, however, went on to hold as follows:
Now the further question is whether because the waqf is a valid one, the plaintiff's suit should be dismissed as to the half share belonging to Latif. I do not think that that consequence follows.
The waqf was never brought into practical operation. The mutwalli took possession but gave it up. This state of things continued for six years before defendant 1 took possession not as mutwalli but as a mere trespasser. On the one hand we have rightful heirs, on the other those who would have been rightful heirs but for the waqf. On the other hand he is a pure trespasser who has ousted the former without any justification. I think that under the circumstances the plaintiffs ought to recover, and must recover on their possessory title: Gobind Prasad v. Mohan Lal ('02) 24 All. 157. I find accordingly.
As a result of certain other findings the learned Additional Subordinate Judge decreed the plaintiffs' suit in respect of only the property given by Abdul Ghafur by the deed of gift dated 19th September 1898 in village Kakethal, namely 8 biswansis and 15 kachwansis and in respect of the property acquired by pre-emption in Mahal Shapurji, village Chakethal. The rest of the claim was dismissed. The decree was not only for the benefit of the plaintiffs but also for the benefit of defendants 2 and 3 Mt. Mumtazunnisa and Bismilla Begam. There was an appeal to the High Court by the plaintiffs against the said decree (First Appeal No. 25 of 1918) and there was a cross objection on behalf of Obaidullah Khan. The judgment of this Court is reported in Abdul Jalil Khan v. Obaidulla Khan ('21) 8 A.I.R. 1921 All. 165. This Court held that Obaidulla Khan was mere benamidar for Abdul Latif Khan, but agreed with the learned Subordinate Judge that as regards the shares in the properties in suit purchased at auction the plaintiff's claim was barred by Section 66, Civil P.C. The learned Judges agreed with the learned Subordinate Judge that the waqf was valid and on that finding they held that the plaintiff's suit should have been dismissed in its entirety, and the mere fact that Obaidulla Khan had in the mutation proceedings agreed to the waqf being disregarded was not enough to invalidate the waqf. In the result they held that the entire suit must fail. They, therefore, dismissed the plaintiff's appeal and allowed the cross-objection of the defendant. The plaintiffs appealed further to the Privy Council and the decision of their Lordships of the Privy Council is dated 17th June 1929 and is reported in Abdul Jalil Khan v. Obaidullah Khan ('29) 16 A.I.R. 1929 P.C. 228. Their Lordships of the Judicial Committee allowed the appeal and directed that the decrees of the lower Courts fee varied by giving the plaintiffs a decree for the properties covered by the auction purchases and not included in the waqf. Their Lordships held that the waqf had been validly created by Abdul Latif in the year 1909 and the plaintiffs were not entitled to claim possession of the properties which were not included in the said waqf. As regards the plea of Section 66, Civil P.C. their Lordships held that it could not bar the plaintiff's suit as Adbul Latif Khan was in possession of the property as owner for more than twelve years after the auction sale and it was no longer necessary for the plaintiffs to prove that the auction sale was benami in the name of others. In the deed of waqf executed by Abdul Latif on 16th April 1909 he had mentioned that Chakethai and Kakethal belonged to him but the sale deed was fictitiously in the name of Kr. Mohammad Obaidullah Khan.
4. In the year 1917 the second litigation was started. Obedullah Khan as plaintiff filed a suit No. 44 of 1917. He alleged that Kunwar Mohammad Abdul Latif Khan had made a waqf of the property by the deed dated 16th April 1909 and after his death in accordance with the terms contained in the said waqf deed Kunwar Mohammad Abdul Ghafur Khan had by a deed dated 10th October 1909 appointed him the mutwalli and he should, therefore, be put in possession of the waqf property, detailed in List A of the plaint as mutwalli after the ejectment of the defendants. He also claimed that he was in possession of the properties in List (b) as mutwalli and a declaration to that effect might be given and he further claimed a large sum of money as mesne profits from the defendants. The defendants to the suit were all the other members of the family. A third suit No. 45 of 1918 was filed by Masarratunnisa Begam who was defendant 4 in the suit filed by Obaidullah Khan. She denied the validity of the waqf and claimed a share in the property on the ground that a portion of it had belonged to her father Abdul Aziz Khan. These two suits No. 44 of 1917 and No. 45 of 1918, were tried together and decided by Mr. Har Govind Baijal, Second Additional Subordinate Judge of Aligarh by one judgment dated 9th August 1919. That judgment is at p. 81 of our paper book. The learned Second Additional Subordinate Judge framed as many as thirty-seven issues. We are now concerned mainly with two issues Nos. 1 and 2 which were as follows:
1. Whether the deed dated 16th April 1909 was obtained by Abdul Ghafur Khan and the plaintiff by use of undue influence?
2. Whether at the time of the execution of the deed dated 16th April 1909 Abdul Latif Khan was suffering from a death illness?
Other issues relating to the waqf were issues 8, 4,16, 20, 21, 22, 24 and 32. The learned Additional Subordinate Judge held that the wakif was the owner of all the properties in Schedule (b) and he was the owner of only ll/l6th share of the properties in Schedule (A). He held that Abdul Latif Khan was suffering from sarcoma and had apprehension of death and therefore the waqf had been executed when the wakif was suffering from marzulmaut and the waqf could be valid only to the extent of one-third but as Abdul Ghafur Khan was one of the heirs and had given his consent to the waqf, the waqf was valid also to the extent of his share which was 3/l6 of two-thirds. He thus held that the waqf was valid to the extent of ll/24th in the property in Schedule (B) and to the extent of 121/384 in Schedule (a). On the question of mesne profits he held that the defendants were not in wrongful possession and no mesne profits could, therefore, be decreed as against them. There were several appeals filed in this Court against the said decision which were numbered as First Appeals Nos. 825, 327, 360, 349, 326 and 361 of 1919. They were all heard and disposed of by one judgment dated 21st April 1922. The judgment is printed at p. 129 of the paper book. This Court upheld the findings of the trial Court that the waqf was valid but as the wakif was suffering from marzulmaut he could only make a waqf of his one-third share. Their Lordships affirmed the decree of the trial Court except as regards mesne profits and certain other minor matters with which we are not concerned. These two litigations terminated with the judgment of this Court and were not taken further. In 1919 another litigation was started by Mt. Asghari Begam against Obedullah and others, Suit No. 324 of 1919. In that suit her claim to the property of Abdul Aziz, her first husband, was decreed. The rest of the suit was dismissed. There was no appeal and we are really not concerned with that litigation. As a result of the decision in Suits Nos. 44 of 1917 and 45 of 1918 the Court held inter partes that the wakf was valid to the extent of 121/384 with regard to the properties in List (b) of the present plaint printed at pp. 8, 9 and 10 of the paper-book, and as regards the properties in List (c) of this plaint the wakf was valid to the extent of 11/24. The properties in List (c) are printed at p. 10 of the paper-book.
5. I have already mentioned that the first litigation between the parties relating to the villages of Kakethal and Chakethal, No. 256 of 1916, was fought up to the Privy Council and their Lordships of the Judicial Committee on 17th June 1929 held that the wakf was valid to the extent of the share of the wakif Abdul Latif. In no stage of that litigation was the question of marzulmaut raised by the parties to that suit. Long before, however, the Privy Council decision, Suit No. 44 of 1917 by Obedullah Khan for possession of the wakf property had been decided finally by this Court on 21st April 1922 by which it held that the wakf was valid only to the extent of 121/884 in the property in List (b) and ll/24 in the property in List (c) and Obedullah Khan had submitted to that decree. His case now is that as a result of the decision of their Lordships of the Judicial Committee in Suit No. 256 of 1916 the decision of this Court in the second litigation (Suit No. 44 of 1917) must be deemed to have been automatically vacated or, as he puts it, nullified or set aside by implication. He claims, therefore, he has right to bring a second suit on the same allegations on which he brought his Suit No. 44 of 1917 and wants to reagitate the matter that the wakf created by Abdul Latif was a valid wakf and operated on the whole of his share in the properties in Schedules (b) and (c) which the plaintiff has now included in Schedule (d).
6. The plaintiff has, therefore, brought his suit for possession of properties in List (d) on the ground that he is the mutwalli of the properties made wakf under the deed dated 16th April 1909 and that as a result of the decision of their Lordships of the Judicial Committee it must be held that the wakf dated 16th April 1909 was a valid wakf and the decisions to the contrary in the other cases before the decision of the Judicial Committee dated 17th June 1929 must be deemed now to have been nullified. On the basis of the decision in Suit No. 44 of 1917 there had been a partition in the Revenue Court and separate mahals had been prepared. The plaintiff's allegations are that those decisions of the Revenue Court cannot operate as res judicata nor can the partition proceeding bind him inasmuch as those also must now be deemed to have been nullified by the decision of the Privy Council.
7. The defendants have filed a written statement in which they have pleaded that the decision in Suit No. 44 of 1917 operated as res judicata and that the plaintiff had no right to bring a second suit for the same relief as in Suit No. 44 of 1917 and on the same cause of action. The defendants further pleaded that the suit was barred by Sections 111 and 233 (k), Land Revenue Act (Act 3 of 1901). The other pleas raised were that the defendants had been in adverse and proprietary possession for more than 12 years and the suit was thus barred by Articles 142 and 144, Limitation Act, and also that the suit was barred by estoppel. A further objection was taken on behalf of Mt. Massarratunnisa Begam, defendant 4, that she was a bona fide purchaser for value and the plaintiff's claim to such of the properties as she had purchased was barred by Section 41, T.P. Act. The suit was dismissed by the learned Civil Judge Mr. Hardeo Singh, on 24th October 1939. He held that the suit was barred by Section 11, Civil P.C. and by Section 233 (k), Land Revenue Act and by Article 142, Limitation Act. As regards the claim of Mt. Massarratunnisa he held that she was not a bona fide purchaser and she knew the entire history of the various litigations and knew all about the rights of the parties. He held that the suit was not barred by estoppel.
8. Against that decree the plaintiff has filed this appeal. Before us learned Counsel for the appellant has raised three points, namely, that the suit was not barred by res judicata, that it was not barred by limitation and that it was not barred by Sections 111 and 233 (K), Land Revenue Act. As regards the plea of res judicata learned Counsel for the appellant has argued that his suit was not barred, bat it was the defence that was barred by the decision of their Lordships of the Judicial Committee. His contention is that no doubt it was true that in the High Court judgment, which became final on 2lst April 1922, it was held that Abdul Latif Khan was suffering from death illness and therefore the wakf created by him was valid only with regard to a fractional share of his estate, but the question of marzulmaut was not raised in the other litigation which went to the Judicial Committee and their Lordships of the Privy Council having on 17th June 1929 held that the wakf was valid to the extent of the share of Abdul Latif Khan the decision of the Judicial Committee must be deemed to bar the defence as it was a later decision and a decision of a higher tribunal.
9. As we have already seen, the decision of their Lordships of the Judicial Committee was given in an appeal arising out of Suit No. 256 of 1916 which had been filed by some of the present defendants to prevent Obedullah Khan from interfering with their proprietary rights in the property. In that case the plaintiffs had urged that the wakf was a farzi document but had not further alleged that Abdul Latif Khan, the wakif, was suffering from marzulmaut and therefore could not make a wakf of more than one-third of his property. As I have already said, the written statement filed by Obedullah is not on the printed record, but from a summary of it in the judgment at page 65 it appears that Obedullah was not relying on the wakf, but according to him he was the owner of the property and he was not aware at the time when he attested the deed that Abdul Latif Khan had included these properties also in the deed of gift. Learned Counsel for the appellant has relied on Expln. 4 to Section 11, Civil P.C. that
any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
If the question as to the validity of the wakf had arisen in a fresh litigation between the parties after the year 1929 there can be no doubt that the decision of the Judicial Committee being the later decision would have operated as res judicata in preference to the decision of the High Court dated 2lst April 1922. Learned Counsel for the appellant has cited before us a large number of cases that out of two conflicting decisions on an issue it is the later decision that operates as res judicata, and he has discussed the principle that if a prior decree inter partes is either not cited in a later case where the same point arises or if cited is disregarded by the Court which has jurisdiction to decide that point, it must be deemed that the plea of res judicata was either waived or that it was held that the previous decision was not binding and it is therefore the later decision that would be binding between the parties. He has cited before us the cases reported in Balkishan v. Kishan Lal ('89) 11 All. 148 (FB), Mallu Mal v. Jhamman Lall ('04) 1 A.L.J. 416, Dambar Singh v. Munawar Ali Khan ('15) 2 A.I.R. 1915 All. 420, M. Seshayya v. Venkatadri Appa Bow ('17) 4 A.I.R. 1917 Mad. 950, Kedar Nath Singh v. Sheo Shankar ('23) 10 A.I.R. 1923 All. 613, Midnapore Zamindari Co. Ltd. v. Naresh Narayan Roy ('24) 11 A.I.R. 1924 P.C. 144 at p. 638, Amar Singh v. Gobind Ram : AIR1927All717 , Bajani Kumar v. Ajmaddin Bhuiya : AIR1929Cal163 , Vertannes v. Robinson and Abdul Gani v. Nabendrakishore Bay : AIR1930Cal47 . The point is so well settled that it is no longer necessary for me to discuss these cases.
10. The question before us is not so much a question as to whether a particular issue is to be decided in favour of the plaintiff or in favour of the defendants by reason of an earlier decision inter partes, but the question is whether a second suit on the same cause of action and for the identical relief can be filed, the plaintiff having filed a suit, No. 44 of 1917, and having lost it, merely on the ground that in some other litigation the Privy Council had given a decision which in effect is contrary to the decision in that suit. Learned Counsel for the appellant has urged that the entire proceedings in Suit No. 44 of 1917 must be deemed to have been nullified and wiped out as a result of the decision of their Lordships of the Judicial Committee. I am afraid I cannot agree with this contention of learned Counsel. To my mind, when a plaintiff has filed a suit in a Court of competent jurisdiction and that suit has been finally decided and no appeal against that decree has been preferred and that decree, therefore, has not been set aside, the mere fact that in some other litigation the point which is the basis of the decision in the previous suit was differently decided will not affect the rights of the parties under the decree that had become final.
11. Learned Counsel for the appellant has based his argument on the well-known case in Shama Purshad Roy v. Hurro Purshad Roy ('63-66) 10 M.I.A. 203. The facts of that case relevant for our purposes were as follows: One Durga Purshad filed a suit for recovery of Rs. 23,024 against Shama Purshad Nundy. The amount had been borrowed from the uncle of Durga Purshad under a bond. During the pendency of that suit one Tara Purshad brought a suit against Durga Purshad and claimed that he was entitled to a half share in that estate. He claimed to be another nephew of the deceased uncle. In 1829 this latter suit was compromised, Durga Purshad agreeing to take ten annas and Tara Purshad six annas in the estate. It was further provided that the money realised from Shama Purshad Nundy would also be divided between them in the same proportion. After the compromise Durga Purshad's suit against Shama Purshad Nundy was decreed by the trial Court, but on 27th July 1827 Shama Purshad filed an appeal. In the appellate Court the case was compromised and Durga Purshad agreed to accept Rs. 24,217-12-17, if paid within three years, no interest running during this period of three years. But in case the amount was not paid, he had a right to execute the decree. In March 1835 Tara Purshad filed a suit against Durga Purshad to recover his six annas share in the amount which would have been payable by Shama Purshad Nundy under the bond executed by him. In this case Tara Purshad claimed interest only up to a particular date and reserved his right to bring another suit for the recovery of interest falling due after that date. We may call this suit by Tara Purshad the third suit. This third suit was decreed by the High Court in its entirety. Durga Purshad filed an appeal before the Privy Council. While the appeal was pending Tara Purshad filed a fourth suit which was for the recovery of the rest of the interest which he had left unclaimed in the third suit. The fourth suit was decreed and the amount was realised by Tara Purshad from Durga Purshad. No further appeal was filed against the decree in the fourth suit. Ultimately in July 1849 the Privy Council allowed the appeal of Durga Purshad and held that Tara Purshad was only entitled to six annas out of the sum of Rs. 24,217-12-17 or such sum as Durga Purshad received or might receive without any wilful default on his part. After the decision of the Judicial Committee Durga Purshad applied for review of judgment and made several attempts to get refund of the amount realised from him in execution of the decree passed in the fourth suit. All his attempts, however, failing he filed a suit which we may call the fifth suit for the recovery of Rupees 23,294-9-164 being the amount wrongfully recovered by Tara Purshad in execution of the decree in the fourth suit. The Courts in India followed the principle in Marriot v. Hampton (1797) 7 T.R. 269 : 101 S.R. 969 and held that the money realised under a decree of Court could not be recovered by a fresh suit whilst the decree or judgment under which it was recovered remained in force. Their Lordships held that the same principle was no doubt applicable, but as a result of their Lordships' decision in the third suit the decree of the High Court in the fourth suit must be deemed to have been reversed or modified. The argument advanced by learned Counsel before us is that this Court is bound by the observations of their Lordships of the Judicial Committee and their Lordships having in 1929 held that the waqf was valid in its entirety the decision of the High Court given in 1922 must be held to be no longer of any binding effect and it must be deemed to have been vacated.
12. The case in Shama Prasad Roy v. Hurro Purshad Roy ('63-66)10 M.I.A. 203 was cited before a Full Bench of the Calcutta High Court in Jogesh Chunder Dutt v. Kali Churn Dutt ('77) 3 Cal. 30 (F.B.). That appeal arose out of a suit filed by the landlord for the realisation of rent at an enhanced rate. The suit was decreed by the Calcutta High Court. The tenants took the matter to the Privy Council. Before the decision of the appeal in the Privy Council other suits had been filed for realisation of rent for subsequent years. Those suits were decreed and the amounts realised. After the decision of the Privy Council the tenants filed a suit for refund. The matter came up before the Calcutta High Court and the majority of the Full Bench held that the decision in 10 M. I.A. 20314 meant that if a decree was obtained on the basis of a decision which was subsequently set aside by the Privy Council then not only the decree in that particular suit would be deemed to be set, aside but all other intermediate decrees which were based on it. Garth C. J. however gave a dissentient judgment, with which Jackson J. concurred, that their Lordships of the Privy Council did not in Shama Prasad Roy v. Hurro Purshad Roy ('63-66)10 M.I.A. 203 want to lay down any new principle of law but based it entirely on the terms of their Lordships' previous decree. At p. 42 of the report his Lordship held that
their Lordships' judgment is based entirely upon this principle, viz., that the effect of the order of Her Majesty in Council made in 1849 was not only to reverse the judgment in the case which was then sub judice, but also to supersede and annul ipso facto the decrees which had been made in another suit.
He went on to observe later:
It appears to me that the only explanation of the apparent difficulty, is this that, in the decree of 1849, their Lordships assumed to deal, and were in fact dealing, not only With the actual claim made in the suit, but with the status and rights of the parties with reference to the whole subject-matter of it.
Garth C. J. gave several illustrations to show how the acceptance of any such general principle of supersession of decrees by decisions in other cases would lead to confusion as regards the rights of the parties and he hoped that the very serious question involved in the case might be taken up on appeal to the Privy Council for final decision, and his opinion was that the doctrine in Marriot v. Hampton (1797) 7 T.R. 269 fully applied and the tenants had no right to recover the money paid under a subsisting decree and that decree was not nullified or set aside because after the date of the decree the Privy Council had set aside the decree of the High Court in an earlier suit and had held that the rent was payable at the lower rate and not at the enhanced rate. It appears that the hope expressed by Garth C. J. in the year 1877 was not fulfilled till the year 1923, and the question again arose before their Lordships of the Judicial Committee in Naganna Naidu v. Venkatappayya ('23) 10 A.I.R. 1923 P.C. 167. In this case in 1904 the plaintiffs brought forty-nine summary suits under Section 9,. Madras Rent Recovery Act, 1869, to enforce acceptance by tenants of pattas or leases on a produce sharing basis. The tenants resisted the suits and claimed that certain rates had been fixed in 1882 which alone were recoverable and not the rate on the produce sharing basis demanded by the zamindars. The zamindars' suits succeeded in India. On a further appeal to His Majesty in Council their Lordships set aside the decree of the High Court. Prior to their Lordships' decision, however, suits were filed for arrears of rent at the enhanced rate for periods subsequent to the period included in the 1849 suits. These suits were decreed and the money realised. After the decision of their Lordships of the Judicial Committee the tenants filed a suit for recovery of rent paid on the basis of the intermediate decrees. The suit was decreed by the Madras High Court on the basis of the decision in Shama Prasad Roy v. Hurro Purshad Roy ('63-66)10 M. I.A. 203. When the matter went up before their Lordships of the Judicial Committee in appeal their Lordships held that in Shama Prasad Roy v. Hurro Purshad Roy ('63-66) 10 M.I.A. 203 the Judicial Committee in applying the test already quoted, 'Whether the decree or judgment under which the money was originally recovered had been reversed or superseded' were of opinion that it was plainly intended by the order in council in that case that all the rights and liabilities of the parties should be dealt with under it, and that it would be in contravention of the order to permit the decrees obtained pending the appeal on which it was made to interfere with this purpose. Their Lordships also pointed out that the facts of that case were peculiar and the plaint in that suit in which the original decree was passed described the interests recovered by the subsequent decrees as part of the same cause of action. Their Lordships agreed with the reasoning and conclusion of Garth C. J. and overruled the decision of the majority in Jogesh Chunder Dutt v. Kali Churn Dutt ('77)3 Cal. 30.
13. The point arose in another case between some of the parties to the litigation before us reported in Ubaid Ullah Khan v. Abdul Jala ('37) 24 A.I.R. 1937 All. 481. It was held in that case by a Bench of this Court that the decision of the Privy Council given in the year 1929 under which it was held that the plaintiffs to the suit filed in the year 1916 were not debarred by Section 66, Civil P.C. from claiming those properties which were not included in the wakf but were not entitled to claim the properties included in the wakf had not the effect of nullifying or superseding the intermediate decrees for profits obtained by Obedullah Khan on the basis of the, High Court decision in 1919 which decision was modified by the Privy Council in 1929 as stated above.
14. Having carefully considered the arguments of learned Counsel I am of opinion that there is nothing in the decree of the Privy Council of the year 1929 from which it can be said that their Lordships intended that it should govern not only the decision in the suit filed in 1916 out of which the above appeal arose but also the decision in the suit of the year 1917 which had become final in the year 1922. In the view that the decision of the High. Court dated 21st April 1922 had not been nullified or set aside by the decision of their Lordships of the Judicial Committee in the year 1929 no fresh suit for the same relief could now be filed. The argument of learned Counsel for the appellant that Section 11, Civil P.C. only bars the trial of an issue and that he having now filed a fresh suit the question of the validity of the wakf must be decided in his favour as the latest decision inter partes is of the year 1929, does not appear to be sound. Section 11, Civil P.C., lays down that:
No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties...and has been heard and finally decided by such Court.
I think that Section 11, Civil P.C. not only bars the trial of an issue but also the trial of a suit in which the matter directly and substantially in issue has already been agitated upon in a previous suit. The matter is thus stated in Mulla's Commentary on the Civil Procedure Code, Edn. 11 at pp. 36 and 37:
If A sues B for damages for breach of contract, and the suit is dismissed, a subsequent suit by A against B for damages for breach of the same contract is barred. This is the rule of res judicata in its simplest form. The question of A's right to claim damages from B having been decided in the previous suit, it becomes res judicata, and it cannot therefore be tried in another suit. It would be useless and vexatious to subject B to another suit for the same cause. Moreover, public policy requires that there should be an end of litigation. The question whether the decision is correct or erroneous has no bearing on the question whether it operates or does not operate as res judicata.
15. In Kalipada De v. Dwijapada Das Lord Darling in delivering the judgment of the Board observed as follows:
The question as to what is to be considered to be res judicata is dealt with by Section 11, Civil P.C. 1908. In that section are given many examples of circumstances in which the rule concerning res judicata applies; but it has often been explained by this Board that the terms of Section 11 are not to be regarded as exhaustive. In Ram Kirpal Shukul v. Rup Kuar ('84) 6 All. 269: 11 I.A. 37 this is made clear, especially in these words of Sir Barnes Peacock: 'The binding force of such a judgment in such a case as the present depends not upon Section 13 of Act 10 of 1877' (now replaced by Section 11, Civil P.C., 1908), 'but upon general principles of law. If it were not binding there would be no end to litigation. This decision, and the authority of the very words used by Sir Barnes Peacock, are confirmed and enhanced by the language of Lord Buckmaster in announcing the conclusion of this Board in G.H. Hook v. Administrator-General of Bengal ('21) 8 A.I.R. 1921 P.C. 110 and further Ramchandra Rao v. Ramchandra Rao ('22) 9 A.I.R. 1922 P.C. 80.
It appears to their Lordships worth while to repeat what was said by Sir Lawrence Jenkins in delivering the judgment of the Board in Sheoparsan Singh v. Ramnandan Prasad Narayan Singh ('16) 3 A.I.R. 1916 P.C. 78.'In view of the arguments addressed to them their Lordships desire to emphasise that the rule of res judicata while founded on ancient precedent, is dictated by a wisdom which is for all time.' 'It hath been well said,' declared Lord Coke, 'interest reipublicae ut sit finis litium-otherwise great oppression might be done under colour and pretence of law.' Though the rule of the Code may be traced to an English source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the Hindu commentators. Vijnanesvara and Nilkantha include the plea of a former judgment among those allowed by law, each citing for this purpose the text of Katyayana, who describes the plea thus: 'If a person though defeated at law sue again, he should be answered,' 'You were defeated formerly'. This is called the plea of former judgment.
16. I may respectfully borrow the same language and say that it is a complete answer to the plaintiff's suit that he was defeated formerly in the year 1922, and he cannot reagitate this matter in this new litigation before us. The plaintiff's suit has also been dismissed on the ground that it is barred by Section 233 (k), U.P. Land Revenue Act, (3 of 1901). Section 233 (k) reads as follows:
No person shall institute any suit or other proceeding in the civil Court with, respect to any of the following matters:
Partition or union of mahals except as provided in Sections 111 and 112.
After the High Court decision dated 21st April 1922, in which it was held that the wakf was valid only to a limited extent various applications were filed for partition in the years 1925 and 1926. Obaidullah Khan, as the mutwalli, represented the wakf in these proceedings. These partition proceedings were started in 1925 and were completed in April 1929 and were confirmed in the month of July 1929. No question of title was raised in the partition proceedings and the parties proceeded on the basis of the decision of the High Court of the year 1922 which had then become final, with the result that a separate mahal was formed of the wakf property and the properties of the other cosharers were separated. The argument advanced by learned Counsel on behalf of the appellant is that under Section 107 an application for partition has to be filed by a recorded cosharer and the proclamation issued by the Collector under Section 110 of the Act is also to recorded cosharers and Section 111 gives a right of objection to the recorded cosharers. His case is that Abdul Jalil Khan and others who had made the application for partition were not cosharers at all because the Privy Council held in the year 1929 that the wakf was valid in its entirety and the mere fact that they were recorded as such did not entitle them to make the application for partition under the Land Revenue Act and the entire proceedings must be deemed to be invalid. His second argument is that only if an objection is raised and is decided under Section 111 of the Act either by the Collector himself or by a civil Court of competent jurisdiction and the partition follows, on such decision the partition would be a bar to a civil suit and where no such objection was made when the partition took place, then there could be no constructive res judicata as in Expln. 4 to Section 11, Civil P.C. Lastly he argues that he is not desirous to disturb the partition; the partition will remain as it is into various mahals and pattis, only the names of the defendants will be removed and the name of the wakf put in as the proprietor of those mahals.
17. Various cases have been cited before us by learned Counsel for the parties. The earliest case cited is the Full Bench case reported in Muhammad Sadiq v. Laute Ram ('01) 23 All. 291 (F.B.)in which it was held that if a party to a partition which was being conducted by the revenue authorities under chap, 4, N.-W. P. Land Revenue Act, 1873, desired to raise any question of title affecting the partition, he must do so according to the procedure laid down in Sections 112 to 115 of the Act. If no such question was raised and the partition was completed, Section 241 (f) of the Act debarred the parties to the partition from raising subsequently in a civil Court any such question of title, and certain earlier cases which expressed the contrary view were overruled. In Kalka Prasad v. Manmohan Lal ('16) 3 A.I.R. 1916 All. 83 which was again a Full Bench decision the question arose of the bar of Section 233 (k), U.P. Land Revenue Act, 1901. One Kali Charan made an application in the revenue Court for partition of his 4 biswa share. A. 3-3/4th biswas stood in the name of the plaintiff Manmohaa Lal and his brother who were the sons of one Nand Kishore. One Kalka Prasad was recorded in respect of the remaining 1/4th biswa. Kalka Prasad, during the partition proceedings after the date fixed for hearing of objections, applied that the 1/4th biswa share recorded in his name should also be partitioned. The result was that Kali Charan had a mahal formed of 4 biswa share that stood in his name, the plaintiff Manmohan Lal had a separate mahal of the 3-3/4th biswa share and Kalka Prasad had a mahal of the 1/4th biswa which stood in his name. After the partition the plaintiff filed a suit claiming that Kalka Prasad was not entitled to l/4th biswa share which stood in his name and the plaintiff was really the owner of that l/4th biswa share. An objection was taken that the partition proceedings barred any such suit and the suit could not therefore be filed. The Full Bench case in 23 ALL. 29124 was not cited before this latter Full Bench. The learned Chief Justice who delivered the main judgment held that a suit of this nature in the civil Court was not a suit with respect to partition or union of mahals. He also held that he did not see any reason why a person entitled to more than one share in a mahal was necessarily bound to include in his application for partition all that he was entitled to and therefore 0.2, Rule 2, Civil P.C. could not apply. As regards the plea of res judicata his Lordship observed that no question of title was raised with respect to the l/4th biswa share and there was no determination of that question and therefore it could not be said that the suit was barred by the rule of res judicata. The Full Bench therefore decided that the suit was maintainable.
18. The very next year the matter was again considered by a Full Bench consisting of Richards C. J. and Sir Promoda Charan Banerji and Tudball JJ., reported in Bijai Misir v. Kali Prasad ('17) 4 A.I.R. 1917 All. 258. The Chief Justice adhered to his former view reported in 38 ALL. 302,26 but Tudball J. agreed with Banerji J. who held that a suit by a cosharer after the completion of the partition proceedings to recover certain shares which had been included in the share of other cosharers was not maintainable and followed the case in 23 ALL. 291.24 The next case cited before us is reported in Lal Behari v. Parkali Koer ('20) 7 A.I.R. 1920 All. 21. In that case the parties to the civil suit were arrayed on the same side in the partition proceedings and one joint mahal was formed of the plaintiff and the defendant. The plaintiff then filed a suit for a declaration that he alone was entitled to the property in that mahal and the defendant had no right on the ' ground that the defendant was the widow of a member of a joint Hindu family It was held by Sir Promoda Charan Banerji, Knox J. agreeing, that the claim was not barred by Section 233 (k), Land Revenue Act, the matter not being a matter relating to union or separation of mahals, nor was the case barred under Section 11, Civil P.C. In the next case reported in Ram Charittar v. Mohan Dei ('23) 10 A.I.R. All. 210 a cosharer had applied for partition. The plaintiff filed an objection in the partition proceeding and was referred to the civil Court under Section 111 (b), U.P. Land Revenue Act. He accordingly filed a suit which was dismissed by the trial Court but was decreed by the appellate Court in his favour. The plaintiff however had not brought it to the notice of the revenue Court that he had filed an appeal and the partition proceedings went on and were completed. After the completion of the partition proceedings the plaintiff filed a suit based on the civil Court's decree for recovery of the share to which he had been declared entitled by the civil Court. It was held that the suit was barred by the provisions of Section 233 (k), Land Revenue Act.
19. The case in 18 A.L.J. 11027 was followed by a Bench of this Court in Data Din v. Nohra : AIR1930All419 . The plaintiffs had applied that a separate patti be formed of their share together with the share that stood in the name of Mt. Nohra who was a Hindu widow, a member of their family. Mt. Nohra however put in an application after the expiry of the period fixed in the proclamation and prayed that her share might be formed into a separate patti. This application of hers was not granted. After the completion of the partition proceedings the plaintiff filed a suit for a declaration that Mt. Nohra was a Hindu widow of a member of a coparcenary body and was not entitled to a share, and this Court held that the suit was not barred by Section 233 (k), Land Revenue Act. In Ram Raikha v. Lallu : AIR1931All462 the same question again arose before this Court. At the partition of a mahal the cosharers of a 4 pie share as well as the cosharers of a 13-pie share desired that separate pattis be prepared of their respective shares and this was done. Some time after the completion of the partition proceedings the plaintiffs filed a suit for a declaration that they had purchased 1-pie out of 4-pie share at an auction sale long before the partition proceedings but had not put forward that claim in the partition proceedings. The question arose as to whether such a suit could be maintained. After a review of the authorities, some of which have been mentioned above, this Court held that there were two interpretations to Section 233 (k), Land Revenue Act. The first view which they called the narrower view, was that Section 233 (k) would only bar a suit which asked for alteration of the total amount of shares in a mahal or in a sub-division of a mahal, or a suit which would ask for khasra numbers or holdings to be changed from one mahal or sub-division of a mahal to another. The other view, which they called the broader view, was that Section 233 (k) barred any question from being raised in the civil Court which could have been raised in an objection under Section 111, Land Revenue Act. Both the learned Judges held that there was no justification for holding that Section 233 (k) of the Act incorporated in itself a rule of res judicata and held that the suit was maintainable.
20. The question has, however, now been concluded by a decision of the Privy Council reported in Bajrang Bahadur Singh v. Beni Madho Bakhsh Singh on appeal from a decision of the Chief Court at Lucknow. Their Lordships of the Judicial Committee approved of the view expressed in the cases in 23 ALL. 29124 and 39 ALL. 469,26 and held that if a question of title affecting the partition which might have been raised in the partition proceedings was not so raised and the partition was completed. Section 233(k), Land Revenue Act, debarred parties to the partition from raising the question subsequently in a civil Court. The first and second points raised by learned Counsel are met by the above observations of their Lordships of the Judicial Committee. It was open to Obaidullah Khan either for himself or as representing the trust to raise the point in the partition proceedings that the applicants claiming partition had no share in the property and, therefore, no separate mahals should be formed in their names, but he not having raised the point and having allowed the partition proceedings to be completed cannot now file this suit. The third point raised by learned Counsel was also discussed by their Lordships of the Judicial Committee and with respect to this point their Lordships observed as follows at page 793:
Their Lordships think this line of reasoning to,be unsound and that the phrase 'partition and union of mahals' refers to a process regulated by Chap. 7 of the Act and the result thereof which is given statutory effect. The words occur at the head of the Chapter as a statement of its subject-matter. Definitions may be more or less successful and it is not always safe to take an abstract word in its most abstract sense. For the purpose of the Act it is not possible to say on the strength of the definition that 'partition' means nothing more than the arrangement of the land into units of area. It imports and includes that rights in these units are distributed among the sharers.... But Section 233, Clause (k), itself contains words which show that partition is not used in that clause in the narrow sense of mere arrangement into units of area. The words 'except as provided in Sections 111 and 112' are inconsistent with the construction contended for. These sections provide means whereby objections involving a question of proprietary title can be brought before the civil Courts. The exception is made in their favour by Clause (k) because otherwise the sections would conflict with the clause-that is because suits raising questions of proprietary title are hit by the prohibition against instituting suits with respect to partition of mahals. The exception makes it exceedingly difficult to maintain that the only thing excluded from the cognisance of the civil Court by Clause (k) is the systematic arrangement of the land into units of area and that no question of proprietary right comes within the prohibition of access to the civil Court.
21. This case was followed by a Bench of this Court in Bhagwati Saran Singh v. Parmeshwari Nandan Singh ('42) 29 A.I.R. 1942 All. 267 at pp, 228 and 229 and also by Dar J., in Ram Baran Dube v. Bahadur Khan ('42) 29 A.I.R. 1942 All. 425. I am of opinion that the decision of the lower Court on this point is right and the plaintiff's suit is barred by Section 233 (k), U.P. Land Revenue Act.
22. The only other point discussed before us is that of limitation. The wakf was created by Abdul Latif Khan on 16th April 1909. He died on 7th September 1909. Soon after his death the question whether the wakf was valid was raised in proceedings for mutation of names, and we have the report of the Tahsildar dated 26th April 1910 at p. 55 of our paper book in which he mentioned that Obaidullah had stated that he did not want to raise the question of the wakf in the mutation proceedings. The result was that mutation was effected in the name of the various heirs of Abdul Latif Khan and they got into possession of their various shares. Suit No. 44 of 1917 was filed by Obaidullah Khan on 22nd November 1917 as the mutwalli under the wakf for possession of the wakf property and for mesne profits. The Subordinate Judge, Mr. Baijal, in his judgment dated 9th August 1918, held that the wakf was valid only to the extent of ll/24th share in the properties in Schedule B and 12l/368th share in the properties in Schedule A of the plaint and gave the plaintiff a decree for possession of those shares along with the other cosharers who were held to be the owners of the rest of the shares in the said villages. Mr. Baijal, however, held that the defendants had not been in wrongful possession of the property inasmuch as Obaidullah Khan had consented to the mutation in their favour and had in clear terms renounced the wakf and they were, therefore, not liable to pay mesne profits. Against that decision there were a number of appeals filed in the High Court and the High Court by a judgment dated 21st April 1922 held that the plaintiff was entitled to mesne profits of the property decreed in his favour. The parties were co-owners in possession of their respective shares up to 1925 when they applied for partition and preparation of separate mahals. The partition proceedings were concluded in the year 1929 and they remained in separate possession of their shares after that date. It was not till 24th September 1938 that the present suit was filed. It was argued on behalf of the defendants that even if it be deemed that their title was in any way defective, they had been in adverse possession of the property since 1910. As a result of Mr. Baijal's judgment in 1919 the wakif got a portion of the property, but the possession of the defendants over the rest of the property continued to be adverse and in any case when they applied for perfect partition of their share in the year 1925, their possession must be deemed to be adverse and the plaintiff's suit for recovery of possession instituted on 24th September 1938 was hopelessly time-barred. The lower Court has held that the plaintiff's suit was barred by limitation, the defendants having perfected their title by twelve years adverse possession, and with that finding I agree.
23. Learned Counsel for the appellant has argued that the defendants' possession in the year 1910 over the property may have been adverse but when Mr. Baijal held in the year 1919 that they were cosharers, since then the defendants' possession was merely that of cosharers or co-owners and therefore there could be no adverse possession. I do not think there is any force in this contention. It is not the plaintiff's case that the defendants are co-owners with the plaintiff. The plaintiff's case is that the defendants had no title to the property at all. The defendants remained in possession of the property under their claim of full ownership from the year 1910 to the year 1919. After the decision of Mr. Baijal and the decision of 'the High Court in the year 1922 the defendants continued to remain in possession of the shares of which they were held to be the owners as full proprietors and, to my mind, they were clearly holding those shares adversely to the claim of the wakf.
24. Learned Counsel for the appellants has cited before us three eases decided by their Lordships of the Privy Council reported in Radha Moni Debi v. Collector of Khulna (1900) 27 Cal. 943, Secretary of State v. Rama Rao ('16) 3 A.I.R. 1916 P.C. 21 and Moothavar v. Kunharan Kutty ('22) 9 A.I.R. 1922 P.C. 181 for the proposition that it is for the person claiming adverse possession to prove that such possession was adequate in continuity, in publicity and in extent. To my mind, the facts of this case are so clear that it cannot be doubted that all these requirements laid down by their Lordships of the Judicial Committee have been fulfilled and I need not discuss them again at length. The defendants claimed that the wakf had never been acted upon, was illusory and was invalid and they were the owners of the property in suit. On these allegations they came into possession of the property, the mutwalli having withdrawn his objections before the mutation Court. Later on when the mutwalli filed a suit on behalf of the wakf, they again challenged the validity of the wakf and claimed to be the owners of the entire property. To the other grounds of invalidity mentioned above they added another ground, that the wakif at the time of the wakf was, suffering from marzulmaut. The lower Court held that the wakf was valid only to the extent of a fractional share in the property and the defendants were the owners of the rest and they continued to remain in possession of the rest of the property as full owners. In exercise of their right of full ownership they claimed partition in 1928 and even twelve years after such application for partition the present suit was filed. I think it is a clear case where the plaintiff's suit is barred under Article 144, Limitation Act.
25. Learned Counsel for the appellant has then relied on the amendment to Section 10, Limitation Act, and has urged that after the amendment to Section 10 it is not possible for the defendants to raise a plea of limitation. It is urged that Abdul Latif Khan was the first mutwalli of the wakf dated 16th April 1909 and the defendants are his legal representatives and therefore no suit against them can be barred by any length of time. Prior to the amendment of Section 10 by the Limitation (Amendment) Act (l of 1929) the Judicial Committee had held that Section 10 was not'applicable to a trust under the Hindu or the Mahomedan law, see Vidya Varuthi v. Balusami Ayyar ('22) 9 A.I.R. 1922 P.C. 123, Abdur Rahim v. Narayan Das Aurora ('23) 10 A.I.R. 1923 P.C. 44 and Jaishth Madho v. Sri Gat Ashraom Narainji ('28) 15 : AIR1928All134 By this amendment now the section has been made applicable to Hindu and Muslim wakfs. It is argued on behalf of the appellant that in all suits instituted after the amendment, Section 10 as amended, must be applied, and after 1929 a, suit against a trustee or his legal representative cannot be barred by limitation. Learned Counsel for the defendants, on the other hand has urged that, if prior to this amendment the defendants had completed their title by adverse possession so that the plaintiff's title was extinguished under Section 28, Limitation Act, the amendment to Section 10, Limitation Act, cannot have a retrospective effect and revive a title which had already been extinguished. I think there is considerable force in this argument. The defendants had completed their title by twelve years adverse possession some time in the year 1922 or 1923. The waqf had no subsisting title after that date and in the absence of anything in the amendment which gave it a retrospective effect and revived titles which had already become extinguished by reason of Section 28, Limitation Act, I think, it must be held that in all such cases where twelve years adverse possession had been completed prior to the amendment the amendment cannot help the plaintiff, I am, therefore, of opinion that even on this point the plaintiff's suit must fail. I would therefore dismiss this appeal with costs.
26. This is a plaintiff's appeal against the decree and judgment of the learned Civil Judge of Aligarh, dated 24th October 1939, by which he dismissed the plaintiff's claim for possession, as mutwalli over the properties described in list (D) of the plaint. A deed was executed by one Abdul Latif Khan, on 16th April 1909, and under the terms of that deed the plaintiff Ubaid Ullah Khan was appointed a mutwalli and had accepted that office by a deed dated 10th October 1909. The defendants-respondents, who are the heirs of Abdul Latif Khan, resisted the claim and among other grounds pleaded that the plaintiff's suit was barred by the principle of res judicata, that it was barred by Sections 111 and 233 (k), Land Revenue Act (Act 3 of 1901) and that the defendants, having been in adverse and proprietary possession for more than 12 years the suit was also barred by time. The learned Civil Judge accepted all the three legal pleas raised on behalf of the defendants and dismissed the claim.
27. On the question of res judicata it has been argued by the learned Counsel for the plaintiff-appellant that far from the plaintiff's claim being so barred it was the defence that was barred by a decision of their Lordships of the Judicial Committee in a suit, No. 256 of 1916, between the very same parties. It appears that on 31st July 1916, a suit, No. 256 of 1916, was brought by Abdul Jalil Khan, Abdul Jamil Khan, Abdul Salaam Khan, Abdul Khalil Khan, Mt. Saidulnissa Begam and Mt. Asghari Begam against the present plaintiff Ubaid Ullah Khan and two others for a declaration that they were the actual owners in possession of the shares in villages Kakethal and Chakethal which were acquired under various auction sales in the name of Ubaid Ullah Khan as a benamidar and also for a perpetual injunction restraining the said Ubaid Ullah Khan from any interference with the proprietary possession of the plaintiffs. The suit was resisted by Ubaid Ullah Khan, but by a decree dated 18th July 1917 the second Additional Civil Judge of Aligarh decreed the plaintiffs' suit with regard to the property given by Abdul Ghafur Khan by a deed of gift dated 19th September 1898 in village Kakethal and in respect of the property acquired by pre-emption in village Chakethal. The rest of the claim was dismissed. A number of issues were raised in that suit and the issue, No. 11, was as follows : 'Whether the wakfnama executed by Abdul Latif was a genuine transaction or was it only a nominal one '?' On this issue the finding of the learned Additional Civil Judge was that the wakf was a valid one and was not a mere paper transaction, but it was never brought into practical operation. The plaintiffs appealed to the High Court and a cross-objection was filed on behalf of the defendants. The appeal was dismissed and the cross-objection of the defendants was allowed on 15th January 1921; the judgment is reported in Abdul Jalil Khan v. Obaidulla Khan ('21) 8 A.I.R. 1921 All. 165.
28. The plaintiffs then went in appeal to the Privy Council and their Lordships of the Privy Council allowed the appeal and varied the decree of the lower Courts by giving the plaintiffs a decree over the properties covered by the auction purchases and not included in the wakf. Their Lordships were of the view that the wakf had been validly created by Abdul Latif and the decree of the Court of the Second Additional Civil Judge of Aligarh dated 18th July 1917 and that of the High Court dated 15th January 1921 respectively were varied by granting to the appellants possession of the properties covered by certain auction purchases but not included in the deed of wakf. This judgment was delivered on 5th July 1929.
29. In the meantime a second litigation was started by an action, No. 44 of 1917 brought by Ubaid Ullah Khan, plaintiff, against Abdul Jalil Khan and 12 others. In this action Ubaid Ullah Khan claimed possession of the property as mutwalli and also prayed for a decree for mesne profits. Another suit was filed by Mt. Mumtazunnissa Begam which was numbered 45 of 1918 and the two suits were tried together and decided by one judgment by the Second Additional Subordinate Judge of Aligarh on 9th August 1919. Various pleas were raised in those suits and the question whether the wakf deed was executed while the wakif was suffering from marzulmaut was also considered. The finding of the learned Additional Subordinate Judge was that the deed of waqf was executed when Abdul Latif, defendant, was suffering from marzulmaut, or death-bed illness, and he accordingly held that according to Muhammadan law the wakf was valid only to the extent of one-third of the property and also to the extent of the share of the heir Abdul Ghafur Khan who consented to the alienation. In the result the plaintiff's claim to recover joint possession as mutwalli of the properties in suit was decreed and his share was declared to be 121/368 in properties detailed in Schedule A. The matter came in appeal before this Court and this Court dismissed the appeal affirming the findings of the Additional Civil Judge as regards the wakf, that it was executed during marzulmaut. There was no further appeal and the matter became final.
30. The point of difference between the parties is that whereas on the one hand it is contended on behalf of the defendants that the decision of this Court in Suit No. 44 of 1917, dated 21st April 1922, operates as res judicata and bars the claim, it is argued on behalf of the plaintiff 'that it is the judgment of the Privy Council in suit No 256 of 1916, dated 17th June 1929, which operates as res judicata and bars the defence. Learned Counsel for the plaintiff-appellant has relied on a large number of rulings to establish the point that where there are two conflicting decisions on an issue it is the later decision which operates as res judicata. It is however clear to me that the [decision in Suit No. 44 of 1917 having become final between the parties it could not be 'nullified or wiped out by subsequent decision of their Lordships of the Privy Council in the year 1929 in Suit No. 256 unless the judgment in the latter case had that effect directly or by implication. This was the view taken by Harries and Rachhpal Singh JJ. in a case between these very parties reported in 1937 A. L. J. 979.18 The relevant portion of the head note runs thus:
Decrees not appealed against are not deemed to have been superseded by an order of Her Majesty in Council or a decree in an appellate Court unless it was the intention of their Lordships of such appellate Court in passing such order or decree expressly to deal with all the rights and liabilities of the parties. If the decree or order was not intended to deal with anything more than the facts of the particular case and the reliefs claimed in the particular case, then such order or decree cannot be deemed to supersede other decrees obtained though such decrees could not have been obtained if the latter decision, which is sought to supersede the earlier decrees had been given before the suits in which the earlier decrees were passed had been determined.
I am therefore clearly of opinion that the plaintiff's suit was barred by res judicata and the finding of the learned Civil Judge was correct on that point. The question whether the suit is barred by Section 233 (k), Land Revenue, Act, is now finally set at rest by the decision of the Privy Council reported in 1938 A.L.J. 786.31 The partition proceedings in this case started in the years 1925 and 1926 in which the plaintiff Ubaid Ullah Khan represented the wakf as a mutwalli. He failed to raise the question of title in those proceedings with the result that while a mahal was formed of the property which is the subject-matter of the wakf properties all the other cosharers were included in another mahal. There can be no doubt that as the plaintiff Ubaid Ullah Khan did not raise the question of his title as a mutwalli in regard to the properties in dispute his claim will be barred by the principle of constructive res judicata. The argument that the result of this suit, if it is decreed would not in any way affect the partition of the remaining mahals, has got no force. The following remarks of Sir George Rankin in the case just-cited would cover the point:
In order to provide that the civil Court dealing in the ordinary course with titles to land should not make any order which would alter the 'units of area' it seems to be at once ineffective and excessive to enact that no person shall institute any suit in the civil Court with respect to partition. In order to divide a mahal into shares, which is the meaning of partition as defined under Section 106, a number of important steps have to be taken to arrive at a result effective in accordance with Section 131. These steps are detailed in the intervening sections. A suit is brought with respect to partition if it is brought to impugn the distribution which by partition has been effected under the Act.
31. The matter does not seem to be very clear on the question of limitation. Section 10, Limitation Act, as amended by Act 1 of 1929, would certainly save limitation unless it is found that before the amendment came into force the defendants had already completed 12 years and the right of the plaintiff to such property was extinguished. There was certainly a denial of title in the year 1909 after the death of Abdul Latif Khan in the mutation proceedings, but in view of the subsequent litigation and the decision of various Courts it is difficult to say if that position continued right up to the end. It was certainly once held by Mr. Baijal in Suit No. 44 of 1917 that the wakf was valid at least to the extent of one-third and to the share of the consenting heir. It could not be said that even after that judgment the possession of the defendants continued to be adverse over the entire property. In view of the fact that the plaintiff's claim has to be dismissed on my findings on the two previous points I would leave the question of limitation undecided. In. the result, agreeing with my learned brother, I would dismiss the appeal with costs.
32. The appeal is dismissed with costs.