1. This is a plaintiff's appeal One Sirdhari had four sons and he left four houses. Munni alias Munna, the eldest of the four sons, executed a mortgage on 27th January 1927, in favour of one Ghasi Ram. The mortgagor purported to mortgage his one-fourth share in the four houses left by his father, Girdhari, Sibhoo, another son of Girdhari, made a mortgage on 23rd July 1928 of one whole house in favour of Mt. Rukmani. This mortgagee filed a suit No. 195 of 1931 on the basis of the mortgage, obtained a decree, had the house sold and purchased it herself. She is dead now and is represented by Durga Parshad, Gopi Nath and Zalim Ram. When Ghasi Ram filed his suit No. 30 of 1939 on the basis of the mortgage elated 27th January 1927, he impleaded, besides his mortgagor, the other descendants of Girdhari and also the legal representatives of Mt. Rukmani. The case of the mortgagee was that his mortgagor had a one-fourth share in the four houses and the mortgagee was therefore entitled to sell up the one-fourth share to realise the money due under the mortgage; but in case the Court came to the conclusion that there had been a partition between, the four sons of Girdhari and each had been allotted a house then the house allotted to Munni alias Munna might be treated as substituted security and a decree be passed for the sale of that house only. In view of this plea, the other descendants of Girhari as well as the legal representatives of Mt. Rukmani, the auction purchaser of one house, were necessary parties. The trial Court came to the conclusion that there had been no division of property and Munna had a one-fourth share in each of the four houses which he had mortgaged and Munna's share could be sold for realisation of the money due under the mortgage. An appeal was filed (civil Appeal No. 192 of 1940) against the decision of the trial Court. The learned Civil Judge agreed with the Munsif that there had been no actual division of the property between the four brothers so that each brother had a one-fourth share and the mortgagee had, therefore, the right to proceed against one-fourth share in each of the four houses mortgaged. The preliminary decree passed by the learned Munsif was affirmed by the learned Civil Judge, but the learned Civil Judge after having upheld the finding of fact arrived at by the trial Court went on to hold that the legal representatives of Mt. Rukmani had a paramount title and it was not necessary in that suit to decide the title of the legal representatives of Mt. Rukmani, who had a right to file a separate suit. Having made these observations, the learned Judge proceeded to dismiss the appeal and passed a decree affirming the decree passed by the trial Court against all the defendants including the legal representatives of Mt, Rukmani. Later, on 4th January 1941, a final decree for sale was passed against all the defendants, including the legal representatives of Mt. Rukmani, who are now the plaintiffs-appellants before us.
2. Relying on the observations made in the judgment of the learned Civil Judge in Civil Appeal No. 192 of 1940, the legal representatives of Mt. Rukmani brought the suit out o which this appeal has arisen for a declaration that there was an actual division of property between the four sons of Girdhari and one house was allotted to each of the four sons. The suit has been dismissed by all the Courts on the ground that it was barred by res judicata.
3. Mr. Bhatnagar, learned counsel for the appellants, has relied on the decision of the Privy Council reported in Pursotam Gir v. Narbada Gir, 21 ALL. 505 : (26 I. A. 175 P. C.) and has urged that the learned Civil Judge, Mr. Sanyal, who decided the Civil Appeal No. 192 of 1940, did not purport to adjudicate on the title between the parties. He has relied on the remarks made by the learned Civil Judge that a question of paramount title cannot be decided in a mortgage suit. Mr. Baleshwari Pd. on behalf of the respondent has, however, relied on the observations of their Lordships of the Judicial Committee in Fateh Singh v. Jagannath Baksh .
4. There appears to be a certain amount of misapprehension on the question how far a decision in a suit brought on a mortgage can affect the rights of a person who claims, a paramount title. In a mortgage suit, as Courts have had occasion to say repeatedly, the preliminary question that comes up for consideration is the question based on the validity of the mortgage, the amount due under the mortgage and how that amount has to be realised from the mortgaged property. If a person has been impleaded as a defendant to an action it does not necessarily follow that he has to set up any paramount title that he possesses at the risk of being barred under Explanation (IV) to Section 11, Civil P. C., i.e., any matter which might and ought to have been made ground of defence or attack, In a mortgage suit, the question of paramount title is not ordinarily considered to be a matter which might have or ought to have been made a ground of defence. But where the mortgagee denies the validity of the title set up by a person which title the mortgagee considers would affect his remedy on the basis of the mortgage and wants an adjudication of that title and impleads such person on the express ground that the title set up might be decided, the person impleaded must appear and plead if he wants that a decision should not go against him by default. In the suit filed by Ghasi Ram on the basis of his mortgage Ghasi Ram had to know whether he could proceed against the property that had been mortgaged to him or by reason of a subsequent partition the position had so altered that he could proceed only against the substituted security. It was on that account that he had impleaded all the members of the family, their transferees and legal representatives. The question was decided by the Munsif that the mortgagee had the right to proceed against one-fourth share in the four houses. To that decree the legal representatives of Mt. Rukmani were parties. That decree was affirmed in appeal and subsequently a final decree was passed for the sale of the one-fourth share. To the final decree also, the legal representatives of Mt. Rukmani were parties. They must be held to be bound by those decrees and merely by reason of the fact that Mr. Sanyal, learned Civil Judge, thought that the point was not really relevant, though he actually decided it against the appellants, the decree cannot lose its binding force. We, therefore, agree with the decision of the learned Single Judge that the previous decision in suit No. 192 of 1939, operates as res judicata.
5. We dismiss this appeal with costs.