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Khalik Yar Khan and ors. Vs. Musammat Mobarik Begam - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in7Ind.Cas.388
AppellantKhalik Yar Khan and ors.
RespondentMusammat Mobarik Begam
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--different subject-matter. - .....contended that as in the previous suit it was held that mahbub ali was the real purchaser of the house in dispute in that suit and as the title to that house and to the houses now in dispute was acquired under the same sale-deed, the question, whether mahbub ali was the owner of the houses now in dispute, or shams-ud-din was the real owner, is res judicata. the court below has found against the defendants on this point and we think rightly. the matter in issue in the former suit was whether the house which formed the subject of the claim in that suit belonged beneficially to mahbub ali or to shams-ud-din and it was in respect of that issue that it was held that mahbub ali was the beneficial owner of it. that is not the issue in the present case. it does not follow from the fact that.....
Judgment:

1. The only question in this appeal is whether the claim of the plaintiff-respondent for partition of her share in the houses in suit is birred by the rule of res judicata. The plaintiff alleged that these houses belonged to her husband Shams-ud-din and that she was entitled by right of inheritance to an eighth share. The defence was that the houses belonged to Mahbub Ali, the father of Shams-ud-din, and that Shams-ud-din had only a fourth share in them. It appears that in 1899, a suit was brought by the plaintiff against Saadat Ali and others in respect of another house which is different from the houses now in dispute. In that suit, it was held that Mahbub Ali was the purchaser of the house them in dispute. The houses now in Suit and the house which was in dispute in the litigation of 1899, were purchased under a sale-deed, dated the 15th of June 1881, executed in favour of Saadat Ali and Hasan Ali, brothers of Shams-ud-din. It is contended that as in the previous suit it was held that Mahbub Ali was the real purchaser of the house in dispute in that suit and as the title to that house and to the houses now in dispute was acquired under the same sale-deed, the question, whether Mahbub Ali was the owner of the houses now in dispute, or Shams-ud-din was the real owner, is res judicata. The Court below has found against the defendants on this point and we think rightly. The matter in issue in the former suit was whether the house which formed the subject of the claim in that suit belonged beneficially to Mahbub Ali or to Shams-ud-din and it was in respect of that issue that it was held that Mahbub Ali was the beneficial owner of it. That is not the issue in the present case. It does not follow from the fact that Mahbub Ali was found to be the beneficial owner of the house, which, was in controversy in 1899, that he was also the owner of the houses now in dispute. The question of the title to these houses was never determined nor was it ever in dispute in any previous litigation. The Court below was, therefore, in our opinion, right in holding that the matter is not res judicata. We accordingly dismiss the appeal with costs including fees on the higher scale.


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