Skip to content


imam Khan Vs. Ayub Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtAllahabad High Court
Decided On
Judge
Reported in(1897)ILR19All517
Appellantimam Khan
RespondentAyub Khan and ors.
Excerpt:
civil procedure cods, section 13, explanation ii - res judicata--matter which might have been made ground of attack in a former suit. - - the suit was dismissed in appeal in december 1891, the plaintiff having failed to prove the absolute title setup......in june 1890, the representatives of hamid-un-nissa sued the representatives of muhammad raza khan for possession as absolute owners of the house. no hint of any other title being vested in the plaintiff was then made. the suit was dismissed in appeal in december 1891, the plaintiff having failed to prove the absolute title setup. on these facts it is now contended that this suit is barred under section 13 of the code of civil procedure. in our opinion this contention is correct. following the case of amolak ram v. champa lal weekly notes 1891, p. 132 the case of mathura prasad v. sambhar singh weekly notes 1892, p. 224 the case of hasan ali v. siraj husain i.l.r. 16 all. 252, and the case of atchayya v. bangarayya i.l.r. 16 mad. 117, we are of opinion that the claim in the.....
Judgment:

Knox and Burkitt, JJ.

1. The suit is concerned with two houses, which forbrevity's sake we will call the North and South house. The North house belonged to one Muhammad Raza Khan, the South house to his wife, Hamid-un-nissa. Hamid-un-nissa died in 1875. Her husband, Muhammad Raza Khan, died in 1879, having in 1877 mortgaged both the houses with possession to one Sultan Khan. In 1885 the representatives of Musammat Hamid-un-nissa instituted a suit against the mortgagee Sultan Khan and against the representatives of Muhammad Eaza Khan for their shares in the South house, and they got a decree in March 1886, for 552 out of 624 sihams. On an application for review by the mortgagee a compromise was arrived at between the mortgagee Sultan Khan and the representatives of Hamid-un-nissa, by which the latter were to have possession of both the houses on paying Rs. 65 to the mortgagee. The compromise apparently was made a rule of Court, the money was deposited in January 1886, and possession was given to the representatives of Hamid-un-nissa in 1890. Now the present suit has been instituted by Imam Khan, father of Musammat Hamid-un-nissa. He has impleaded the representatives of Muhammad Raza Khan and has asked for possession of both houses on the ground that he has been illegally ejected by the representatives of Muhammad Raza. The prayer of his suit is for possession of both houses as mortgagee or in the alternative for recovery of Rs. 93, the mortgage money. A decree has been passed in favour of the plaintiff for the South house. This appeal has reference to the North house only. The main defence set up by the representatives of Muhammad Raza is that the plaintiff's suit is barred under the second explanation to Section 13 of the Code of Civil Procedure. They alleged that the claim now made might and ought to have been made in the former litigation between the parties. The facts of the former litigation are these: In June 1890, the representatives of Hamid-un-nissa sued the representatives of Muhammad Raza Khan for possession as absolute owners of the house. No hint of any other title being vested in the plaintiff was then made. The suit was dismissed in appeal in December 1891, the plaintiff having failed to prove the absolute title setup. On these facts it is now contended that this suit is barred under Section 13 of the Code of Civil Procedure. In our opinion this contention is correct. Following the case of Amolak Ram v. Champa Lal Weekly Notes 1891, p. 132 the case of Mathura Prasad v. Sambhar Singh Weekly Notes 1892, p. 224 the case of Hasan Ali v. Siraj Husain I.L.R. 16 All. 252, and the case of Atchayya v. Bangarayya I.L.R. 16 Mad. 117, we are of opinion that the claim in the alternative to hold as mortgagee not merely might, but ought to, have been added to the prayer in the former suit as a matter of attack on the defendant. On this question the judgment of their Lordships of the Erivy Council in Kameswar Pershad v. Rajkumari Ruttun Koer L.R. 19 I.A. 234, is instructive, and, adopting the rule therein laid down, we cannot say that a claim to possession under an absolute title and a claim to possession under a mortgage title are so dissimilar as to cause confusion. On a consideration of these authorities we have no hesitation in holding that the alternative claim to possession as mortgagee ought to have been made a matter of attacking the former suit, and as such was not done, this suit, as far as, the: North house is concerned, is in our opinion barred by the principle of res judicata laid down in explanation II, Section 13 of the Code of Civil Procedure. We therefore dismiss the appeal with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //