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Mufti Mohammad Baqar and anr. Vs. Namwar Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1931All660
AppellantMufti Mohammad Baqar and anr.
RespondentNamwar Singh and ors.
Excerpt:
.....in the decree from which no appeal has been brought which is not raised and cannot be set right if the appeal which he had brought succeeds, the right of appeal is not barred either by the rule of res judicata, or at all, by reason of his failure to appeal from the decree which does not prejudice him. it is true that here we are not dealing with two identical decrees but in effect the case does come clearly within the principle of the quotation first made......having been dismissed, sukhu koeri submitted to the dismissal of his suit. bishnath having had his suit decreed, of course, had nothing further to do. the zamindars, plaintiffs in suit no. 289, appealed against the dismissal of their suits. they did not however file any appeal against the decree obtained by bishnath in suit no. 442, and at the hearing of their appeal the objection was taken that it could not be heard or judgment passed in their favour in view of the fact that there was an outstanding decree against them in bishnath's suit no. 442, which had become final. the lower appellate court, the sessions and subordinate judge of jaunpur, accepted this contention holding that the case was governed by the decision of the full bench in zaharia v. dibia [1911] 33 all 51, and has.....
Judgment:

Boys, J.

1. This appeal arises out of a suit for redemption two other suits for redemption by other plaintiffs having been also filed and tried along with Suit No. 289 of 1928 out of which this appeal arises. It will be necessary to state the facts with precision. Maula Koeri owned a fixed rate and occupancy tenancy. He died and his widow Mt. Jamuni executed a usufructuary mortgage on 23rd October 1905, in favour of one Ramlal. On Mt. Jamuni's death there were three claimants to the property: firstly, Bishnath Koeri, who claimed to be a daughter's son of Mula Koeri; secondly, Sukhu Koeri, who claimed to be a collateral of Mula Koeri; and thirdly, the zamindars who claimed that the property had lapsed to them. None of these three claimants thought fit to endeavour directly to establish his claim to the property. Bach of them decided to secure his position, if possible, by filing a suit to redeem the mortgage. All three accordingly filed separate suits against the heirs of Ramlal, the mortgagee, those heirs being defendants 1 to 7.

2. The first suit to be filed in point of time was Suit No. 289 of 1928 filed by the zamindars who claimed that the property had lapsed to them. It was no doubt by way of answer to this suit that first Sukhu Koeri and then Bishnath Koeri filed similar suits for redemption, Nos. 322 of 1928 and 442 of 1928 respectively. In each suit the heirs of Ramlal were the only original defendants.

3. These three suits were consolidated by bringing all the parties on the record of each separate suit on to the record of both the other suits. There was one trial the evidence being taken in Suit No. 289. Judgment was delivered in Suit No. 289 and copies of the judgment were placed on the records of Suits Nos. 322 and 442, those copies of course being in effect and law judgments in those cases.

4. There followed separate decrees in each of the suits, the decree in No. 289 decreeing the suit without any reference to the other suits or the decrees in those suits: and similarly in Suits Nos. 322 and 442 there were decrees dismissing those suits respectively without any reference to Suit No. 289 or the decree therein. I am informed that this is the nature of the three decrees, and counsel on both sides agree that this is so. Bishnath's Suit No, 442 having been decreed and the suits of Sukhu Koeri, No. 322, and of the zamindars, who are the appellants here, Suit No. 289, having been dismissed, Sukhu Koeri submitted to the dismissal of his suit. Bishnath having had his suit decreed, of course, had nothing further to do. The zamindars, plaintiffs in Suit No. 289, appealed against the dismissal of their suits. They did not however file any appeal against the decree obtained by Bishnath in Suit No. 442, and at the hearing of their appeal the objection was taken that it could not be heard or judgment passed in their favour in view of the fact that there was an outstanding decree against them in Bishnath's Suit No. 442, which had become final. The lower appellate Court, the Sessions and Subordinate Judge of Jaunpur, accepted this contention holding that the case was governed by the decision of the Full Bench in Zaharia v. Dibia [1911] 33 All 51, and has repelled the contention of the appellant that the case came within the principles laid down by a later Full Bench of this Court in Ghansham v. Bhola A.I.R. 1923 All. 490. A careful perusal of both these judgments suggests to my mind strongly that their Lordships in the latter case, while they did not in so many words overrule the decision in the earlier case, did very largely qualify it. While I recognize that it is very difficult, to my mind impossible, to say that the decision in the first case does not govern the present case, I am also of opinion that the principles laid down in the latter case govern the present and must be taken as qualifying the decision in the earlier case. After referring to the case, Zaharia v. Dibia [1911] 33 All 51, his Lordship the Chief Justice and the three other of the Judges constituting the Bench said:

It therefore becomes necessary to lay down once and for all the practice which should in future bind the Court, and to negative the general applicability of the rule in 'Zaharia v. Dibia [1911] 33 All 51.

5. In Ghansham v. Bhola A.I.R. 1923 All. 490 a plaintiff obtained a decree for the amount of his mortgage and the sum representing interest, but as the trial Court thought that the interest was very heavy it refused the plaintiff costs. The plaintiff filed an appeal against so much of the decree as refused him costs and succeeded in getting his costs. The defendant also appealed against the severity of the amount of interest allowed and he also succeeded the interest being reduced. The plaintiff, of course content with the result in the appellate Court in his own appeal giving him costs, appealed only against the decree in the defendant's appeal reducing the amount of interest. It was objected at the hearing of the second appeal in this Court that the plaintiff could not be heard in appeal here as he had not appealed against the other decree passed by the appellate Court. This objection the respondent was able to take because each decree in the lower appellate Court recited the whole result, namely, the allowing of the costs and the reduction of the interest, and it was contended that as in the plaintiff's decree in the appellate Court there was whether unnecessarily or not, an inclusion of the reduction of interest he could not appeal, to this Court against * the decree in the defendant's appeal without also appealing against the decree in his own appeal. It will be noticed therefore that the two decrees in this case of Ghansham v. Bhola were identical. In the case before me they are not identical. I have however to consider not whether there is some more or less accidental difference in facts here and there due to drafting, for very few cases are likely to be on absolutely the same footing as to facts, but I have to see whether the principle in the later Full Bench governs this case or not. The majority of the Judges at p. 510 said:

Where it appears to an appellate Court that there are two decrees arising out of two suits heard together or raising the same question between the same parties, or arising out of two appeals to a subordinate appellate Court, and only one of such decrees is brought before it in appeal, and there is nothing prejudicial to the appellant in the decree from which no appeal has been brought which is not raised and cannot be set right if the appeal which he had brought succeeds, the right of appeal is not barred either by the rule of res judicata, or at all, by reason of his failure to appeal from the decree which does not prejudice him.

6. It is true that their Lordships continued to say:

It would be indeed wrong for an appellant to appeal against a decree which did not prejudice him and to which he did not object, or to appeal against two duplicate decrees where an appeal against one of them would-be sufficient, and he is certainly under no obligation to do so.

7. It is of course true that as to the first of the alternatives stated in the quotation last made the decree in Suit No. 442 obtained by Bishnath did prejudice the present appellant, but it was also said that it would be wrong for him to appeal against two duplicate decrees where an appeal against one of thorn would be sufficient. It is true that here we are not dealing with two identical decrees but in effect the case does come clearly within the principle of the quotation first made. All the points raised in Suit No. 442 were raised in Suit No. 289 and there is nothing 'prejudicial to the appellant in the decree in suit No. 442 which is not raised and cannot be set right in the appeal in Suit No. 289.

8. I hold therefore that there is nothing to prevent the lower appellate Court from proceeding to hear and dispose of the appeal from the decree in Suit No. 289.

9. As to the bearing of the decree which it will make in appeal if it should turn out to be in favour of the present appellants, the plaintiffs in Suit No. 289, we have the statement of the majority of the Pull Bench in Ghansham v. Bhola where they say at the bottom of p. 510:

The ultimate rights of the parties must be adjusted and regulated according to the final decision of the last Court of appeal.

10. I set aside the decree of the lower appellate Court and return the case for it to re-admit the appeal for hearing and disposal on the merits. Costs will abide the result.

11. Leave to appeal is asked for and granted.


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