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Kunwar Muhammad Ubaid-ullah Khan Vs. Kunwar Muhammad Abdul Jalil Khan - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1937All481; 170Ind.Cas.657
AppellantKunwar Muhammad Ubaid-ullah Khan
RespondentKunwar Muhammad Abdul Jalil Khan
Excerpt:
res judicata - two conflicting decisions--later prevails--decisions of revenue courts, whether can be res judicata--restitution--money paid under decree--suit for recovery, when lies--decree not appealed against--when can be said to have been superseded by appellate court--agra tenancy act (iii of 1926), section 271--conflicting decrees regarding proprietary rights--issue must be sent to civil court for decision--revenue court itself deciding such question--decree, whether acts as estoppel and res judicata--limitation act (ix of 1908), schedule i, articles 62, 109--decree of revenue court modified and superseded by decree of civil court--money paid under revenue court decree, whether can be recovered--limitation, when runs--limitation, once running, if can be suspended--possession, decree.....1. these two first appeals and the execution appeal arise out of litigation which had previously taken place between the parties concerning certain zamindari shares in the villages of chakhathal and kakathal in the district of aligarh.2. first appeal no. 191 of 1933 is a plaintiffs' appeal against a decree of the learned civil judge of aligarh, dismissing the plaintiffs' claim for mesne profits for the years 1916 to 1929 relating to the plaintiffs' share in village chakhathal. first appeal no. 140 of 1934 is a defendant's appeal against a decree of the learned civil judge of aligarh, decreeing the plaintiff's claim-for repayment of certain moneys which the defendant had wrongfully compelled the plaintiff to pay. execution first appeal no. 279 of 1934 is a judgment-debtors' appeal against.....
Judgment:

1. These two First Appeals and the Execution Appeal arise out of litigation which had previously taken place between the parties concerning certain zamindari shares in the villages of Chakhathal and Kakathal in the district of Aligarh.

2. First Appeal No. 191 of 1933 is a plaintiffs' appeal against a decree of the learned Civil Judge of Aligarh, dismissing the plaintiffs' claim for mesne profits for the years 1916 to 1929 relating to the plaintiffs' share in village Chakhathal. First Appeal No. 140 of 1934 is a defendant's appeal against a decree of the learned Civil Judge of Aligarh, decreeing the plaintiff's claim-for repayment of certain moneys which the defendant had wrongfully compelled the plaintiff to pay. Execution First Appeal No. 279 of 1934 is a judgment-debtors' appeal against an order of the execution Court, disallowing an objection which he had preferred to an execution. Before considering the details of each particular case it will be necessary to set out at some length the facts which gave rise to the earlier litigation and out of which litigation the present cases arise. The shares in the villages of Chakhathal and Kakathal originally belonged to Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan. The relationship of these persons with the appellants and the respondents in these present appeals will be seen from the pedigree given below:

Zahur Ali Khan|-----------------------------------------------------------| | | | |Abdul Rahim Abdul Shakur Khan Abdullah Abdul Ghafur Abdul Rahman| | || Ubaid-Ullah Khan || || || ------------------------ -|---|| | | || Abdul Aziz Khan Musammat Abdul Latif Khan| | Rabaya || Masarrat-un-nisa alias Said-un-nisa| Aziz-un-nisa|||||-------------------------------------------------------------------| | | |Abdul Jalil Khan Abdul Jamil Khan Abdul Salam Khan Abdul Khalil Khan

3. Though the properties concerned in these present appeals belonged to Abdul Shakur, Abdul Aziz and Abdul Latif Khan, they stood in the name of Kunwaf Ubaid-Qilah Khan, who it will be seen from the pedigree was a son of one of the brothers of Abdul Shakur Khan and a cousin of Abdul Aziz Khan and Abdul Latif Khan. It appears that the properties in question had been acquired by Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan but that the sale deeds had been executed in favour of Ubaid-Ullah Khan as benamidar. Abdul Aziz Khan predeceased Abdul Latif Khan by a number of years and the latter died in. the year 1909. Abdul Shakur Khan died in the year 1915 and the plaintiffs in Suit No. 100 of 1032 which gives rise to First Appeal No. 191 of 1933 are the heirs and representatives of the three persons who originally acquired these properties in the name of Ubaid-Ullah Khan who was the main contesting defendant in that suit and who is the main contesting respondent in the appeal.

4. It appears that Abdul Latif Khan, before his death, made a wakf of his property and in due course Ubaid-Ullah Khan became mutwalli of the wakf. All appears to have gone well until the death of Abdul Shakur Khan who, of course, was the last survivor of the persons who acquired the properties. On his death Ubaid-Ullah Khan, it is alleged, became dishonest and relying upon the fact that his name was mutated in the revenue papers in respect of these properties claimed them as his own and proceeded to collect the rents and profits thereof and to retain the whole of the proceeds. In consequence the heirs of the real owners of the properties were compelled to institute proceedings against Ubaid-Ullah Khan and on July 31, 1916, Suit No. 256 of 1916 was instituted by the heirs of the real owners of these properties against Ubaid-Ullah Khan and others in the Court of the First Additional Civil Judge of Aligarh. The plaint in that suit is printed at pp. 23 to 29 of the paper-book in First Appeal No. 140 of 1934. This plaint sets out the history of the family previous to the time of Abdul Shakur Khan, Abdul Latif Khan and Abdul Aziz Khan and gives in detail the method by which the three persons became the owers of the properties. The defence of Ubaid-Ullah Khan in this suit was that he was the real owner of the properties and that he was in no sense a benamidar. He further contended that in so far as the property made wakf by Abdul Latif Khan was concerned, he was rightfully in possession of such mutwalli under the said wakf. He further pleaded that this suit against him was bound to fail by reason of Section 66, Civil Procedure Code.

5. It appears that when the properties were originally purchased they were purchased benami for the real owners by third parties who eventually by consent of all transferred the properties to Ubaid-Ullah Khan. The properties were purchased at auction sales and that being so, it was contended that the suit was barred by reason of Section 6fc, Civil Procedure Code. The learned Additional Civil Judge of Aligarh decided the case on July 18, 1917. He held that the plaintiffs' claim to the greater portion of the property was barred by Section 66, Civil Procedure Code, but decreed their claim in so far as the wakf property was concerned. He held that though Abdul Latif Khan had made a wakf of this property, the wakf had never been acted upon and was in fact a dead letter. The result, therefore, was that the plaintiffs' claim succeeded as to a small part of the property but failed as to the greater portion thereof. The plaintiffs in the suit appealed against this decision of the learned' Additional Civil Judge of Aligarh and the defendant Ubaid-Ullah Khan filed a cross-objection. The appeal was heard in this Court and was disposed of on January 15, 1921. This Court upheld the learned Additional Civil Judge's finding that the plaintiffs' claim was barred by reason of Section 66, Civil Procedure Code, and consequently dismissed their appeal. It however allowed the defendants' cross-objection and held that the wakf created by Abdul Latif Khan was a valid one and that the defendant was entitled to possession of the wakf property as mutwalli. The result, therefore of the appeal was, that the plaintiffs' claim was dismissed in its entirety.

6. Whilst the appeal in this Suit No. 256 of 1916 was pending in the High Court, Ubaid-Ullah Khan brought a suit against a member of the plaintiffs in the previous litigation and Others claiming possession of the wakf property upon allegations that the property was being held by certain lessees who no longer had any right to it. In that suit which was Suit No. 44 of 1917 the defendants contested the validity of the wakf made by Abdul Latif Khan and alleged that the wakf could only be binding to the extent of 1-3rd share of the property by reason of the doctrine of marzulmaut. This case was eventually decided by the Additional Civil Judge of Aligarh on August 9, 1919, when he held that it was a case of marsulmaut and the wakf was only valid to the extent of 1-3rd. It will be observed that the appeal in the first suit, viz., Suit No. 256 of 1916,- was not heard until the subsequent Suit No. 44 of 1917 was disposed of. This Court in its judgment in that appeal found that the whole wakf was valid and upheld Ubaid-Ullah's claim to the property as mutwalli upon that ground. No reference whatsoever is made in the judgment of this Court to the later finding of the Additional Civil Judge of Aligarh that the wakf was only valid to the extent of l-3rd. The plaintiffs of the first Suit No. 256 of 1916 being dissatisfied with the decision of this Court preferred an appeal to His Majesty in Council which was eventually decided on June 17, 1929. Abdul Jalil Khan v. Ubaid-Ullah Khan 120 Ind. Can. 651 : AIR 1929 PC 228 : 57 MLJ 177 : 33 CWN 1061 : 6 OWN 637 : (1989) ALJ 930 : 30 LW 395 : 50 CLJ 357 : 31 Bom LR 1393 : 51 A 675 : 56 IA 330 : (1929) MWN 734 : Ind. Rul. (1930) PC 11 (PC).

7. In the meantime, however, an appeal had been preferred against the decision of the learned Additional Civil Judge of Aligarh in Suit No. 44 of 1917 and this appeal was decided by this Court on April 21, 1922. This Court by its judgment upheld the decree of the learned Civil Judge holding that the wakf was valid only to the extent of 1-3rd. Against the decree of this Court no appeal was preferred by either party and it consequently became final. The position, therefore, was that in the earlier appeal this Court had held the wakf to be valid to the full extent of the property, whereas in the later appeal this Court held it valid only to the extent of 1-3rd.

8. As we have stated, the appeal to His Majesty in Council was heard and determined on June 17, 1929, and their Lordships upheld the plaintiffs' claim to possession of the properties other than the wakf properties. Their Lordships, however, held the wakf to be a valid and binding wakf and consequently held that the plaintiffs had no right to possession of that portion of the properties against the Mutwalli Ubaid-Ullah Khan. The result of the appeal therefore was that the plaintiffs' claim was decreed with respect of all the properties other than those which had been made wakf by Abdul Latif Khan. It is to be observed that no mention appears to have been made during the appeal before their Lordships of the later decision of this Court upholding the validity of the wakf to the extent of 1-3rd only though that decision not having been appealed against had become final and binding between the parties. We have carefully perused the judgment of their Lordships and we fail to find any reference whatsoever to the later judgment of this Court respecting the wakf. The result of this long and protracted litigation, therefore, was that the heirs of Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan had established their right to possession of the shares of their ancestors in villages Chakhathal and Kakathal with the exception of that portion of the properties which had been made wakf by Abdul Latif Khan.

9. For some reason or another the plaintiffs in the first Suit No. 256 of 1916, though claiming possession of the whole of the properties as against Ubaid-Ullah Khan, made no claim for mesne profits though they could have done so. Consequently they instituted Suit No. 100 of 1932 in the Court of the Civil Judge of Aligarh claiming mesne profits against the defendant Ubaid-Ullah Khan with respect to their share in the village of Chakhathal from the year 1916 up to the year 1929 amounting in all to a sum of Rs. 47,467-1-4. By their plaint the plaintiffs shortly set out the history of the litigation and claimed that as a result of it they had been held by their Lordships of the Privy Council to be entitled to the whole of the properties of their ancestors with the exception of 1-3rd of the property made wakf by Abdul Latif Khan. It was with respect to their share in village Chakhathal other than 1-3rd of the wakf property in that village that they made their claim. This suit was decided by Civil Judge of Aligarh en December 15, 1932. He held that the plaintiffs' claim was barred by limitation and consequently dismissed the suit. It is against this decree that First Appeal No. 191 of 1933 has been preferred.

10. It will be convenient at this stage to dispose of this appeal. In our judgment the learned Civil Judge was right in holding that the plaintiffs' claim to mesne profits was barred by limitation. The suit was instituted on June 17, 1932, and mesne profits were claimed from the year 1916 to the year 1929. No mesne profits were claimed for the three years immediately preceding the suit. It appears that the plaintiffs had obtained redress in the Revenue Court with respect to the period from June 17, 1929, to June 17, 1932, hence no claim for that period was made.

11. The main defence of Ubaid-Ullah Khan was that the claim was wholly barred by reason of Article 62 and 109, Limitation Act. The plaintiffs on the other hand, contended that their cause of action did not arise until June 17, 1929, when this appeal was allowed and possession of the properties decreed. They contended that if Article 62 or Article 109 applied then the period of limitation was suspended until the decision of their Lordships of the Privy Council on June 17, 1929. In our judgment the plaintiffs' claim was clearly governed by Article 109, Limitation Act. That article provides that in a suit for profits of immovable property belonging to the plaintiff which have been wrongfully received by the defendant the period of limitation is three years from the time when the profits were received. As we have stated, there was no claim to any profits received by the defendant within three years of the suit and that being so, the claim was, in our judgment, clearly barred.

12. In our judgment, once the period of limitation has begun to run, it cannot be suspended unless such suspension is provided for expressly in the Limitation Act. This was held in Ram Charan Sahu v. Goga : AIR1927All446 . In that case a Bench of this Court consisting of Lindsay and Sulaiman, JJ. expressly held that the period of limitation cannot be suspended once it has begun to run unless that suspension is itself provided for in the Limitation Act. In our judgment that case should be followed and that being so, we hold that the period of limitation in this case was not suspended as there is no provision in the Act suspending limitation in circumstances similar to those existing in the present case. The defendant had wrongfully received the rents and profits of these properties from the year 1916 and in our view time began to run against the plaintiffs from the date when he actually received the rents and profits. When the suit was actually brought, three years had elapsed since the receipt of the last profits claimed. That being so, the claim was barred.

13. We may say at this stage that the appellants were unable to press this appeal and the only point urged before us was that the period of limitation should be regarded as suspended whilst the litigation was in progress which terminated before their Lordships of the Privy Council on June 17, 1929. No other point was taken in this appeal and that being so, we are bound to hold that the learned Civil Judge came to a right conclusion when he decided that this suit failed by reason of limitation. The result, therefore, is that Appeal No. 191 of 1933 must be dismsissed. Kunwar Mohammad Abdul Jalil Khan who was one of the heirs of Abdul Shakur Khan, Abdul Aziz Khan and Abdul Latif Khan and one of the plaintiffs in Suit No. 100 of 1932 instituted on his own behalf another suit, viz., Suit No. 101 of 1932, against Ubaid-Ullah Khan claiming the repayment of certain moneys amounting to Rs. 15,448-4-3 together with pendente lite and future interest on the ground that he had been compelled to various sums to Ubaid-Ullah Khan under decrees to profits passed by the Revenue Court prior to June 17, 1929, during which period Ubaid-Ullah Khan's name was entered in the revenue papers as the sole person entitled to possession of a certain share in the village of Kakathal.

14. The plaintiff Abdul Jalil Khan had also a share in this village of which he was also lambardar. It was therefore his duty to collect the rents and profits of the village and to distribute them amongst the co-sharers. Whilst the decree of the High Court which was under appeal to their Lordships of the Privy Council stood unreversed, Ubaid-Ullah Khan was still the owner of a very considerable share in Kakathal. Abdul Jalil Khan very naturally refused to pay to him the rents and profits relating to that share and consequently Ubaid-Ullah Khan brought four suits against him and obtained four decrees amounting to Rs. 21,058-0-5. Abdul Jalil Khan gave Ubaid-Ullah Khan credit for the rents and profits of a third of the wakf property in this village of Kakathal and claimed the difference in the suit, viz., Rs. 15,448-4-3 as money which he had been compelled,to pay during the pendency of the litigation which culminated in the appeal to His Majesty in Council. The result of this last appeal showed that the defendant was not entitled to these moneys and therefore it was said he should be compelled to re-pay them.

15. The defendant Ubaid-Ullah Khan raised a number of pleas to this claim. In the first place he contended that the moneys had been obtained by him from the plaintiff under decrees, of competent Courts which were still subsisting and valid and had never been reversed. He further contended that in any event he was entitled to be given credit for the profits relating to the whole of Abdul Latif Khan's interest in this village of which he had made wakf. It was the defendant's case that their Lordships of the Privy Council had maintained the validity of this wakf not merely as to a third of it as contended by the plaintiff but with respect to the whole of the property made wakf. He also contended that if the plaintiff had any right to the return of these moneys his claim was long since barred by limitation.

16. The learned Civil Judge of Aligarh by his judgment of February 21, 1934, held that the plaintiff was entitled to recover a sum of Rs. 10,745 and decreed the plaintiff's claim for that amount with costs. The difference between the amount decreed and the amount claimed is a matter of accounting not challenged by the successful plaintiff. In the view of the learned Judge the effect of the judgment of their Lordships of the Privy Council of June 17, 1929, was to supersede the decrees of Revenue Courts under which Ubaid Ullah Khan had obtained the moneys from the plaintiff and that being so, the plaintiff was entitled to recover the same. It is against this decree that F. A. No. 140 of 1934 has been preferred by the defendant Ubaid-UUah Khan.

17. It has been strongly urged before us by Counsel for the defendant-appellant in this appeal that the decision of the learned Civil Judge cannot be sustained. It has been argued that the plaintiff has no cause of action because the moneys claimed are in respect of sums paid by the plaintiff to the defendant under valid and subsisting decrees which have never been reversed or superseded. According to the defendant's argument the judgment of their Lordships of the Privy Council of June 17, 1929, merely determined the question of possession and was in no way concerned with the decrees which the defendant had obtained against the plaintiff in the Revenue Courts and consequently it could not be said that those decrees had been superseded by the later order of His Majesty in Council. On the other hand, Counsel for the plaintiff has argued that the decrees of the Revenue Courts for profits must be regarded as having been superseded by the order passed by His Majesty in Council in June 1929.

18. Counsel for the appellant has placed great reliance upon the old English case in Marriot v. Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 Sm. LC 12th Ed. 403. In that case it was laid down as early as 1797 that where money had been paid by the plaintiff to the defendant under the compulsion of legal process which was afterwards discovered not to have been due, the plaintiff could not recover it back in an action for money had and received. The facts of Marriot v. Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 Sm. LC 12th Ed. 403 were, that the defendant had formerly brought an action against the plaintiff for the price of goods sold and delivered for which the plaintiff had paid and had obtained the defendant's receipt for the same. The plaintiff being unable to find the receipt at the time and having no other proof of payment was unable to defend the action and was obliged to submit and pay the money again. Later the plaintiff found the receipt and brought an action for money had and received in order to recover back the amount of the sum so wrongfully enforced in payment. It was held that he could not recover the money which had been paid under legal process, however, un-conscientiously retained by the defendant. The law as laid down by Marriot v. Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 Sm. LC 12th Ed. 403 was discussed by their Lordships of the Privy Council in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25. At page 211 Page of 10 M.I.A.--[Ed.]. Turner, L.J. who delivered the judgment of the Board, observes

There is no doubt that, according to the law of this country-and their Lordships see no reason for holding that it is otherwise in India--money recovered under a decree or judgment cannot be recovered back in a fresh suit or action whilst the decree or judgment under which it was recovered remains in force; but this rule of law rests, as their Lordships apprehend, upon this ground, that the original decree or judgment must be taken to be subsisting and valid until it has been reversed or superseded by some ulterior proceeding. If it has been so reversed or superseded, the money recovered under it ought certainly to be refunded, and, as their Lordships conceive, is recoverable either by summary process, or by a new suit or action. The true question, therefore, in such cases is whether the decree or judgment under which the money was originally recovered has been reversed' or superseded.

19. This statement of the law was again approved of by their Lordships of the Privy Council in B. Nagavna Naidu Bahadur Zamindar Garu v. R. Venkatappayya 21 ALJ 726 : 76 Ind. Cas. 594 : AIR 1923 PC 167 : 50 IA 301 : 46 M 895 : (1923) MWN 554 : 33 MLT 262 : 45 MLJ 657 : 25 Bom. LR 1290 : 18 LW 913 : 28 CWN 568 : 39 CLJ 312 (PC). At page 729 Page of 21 A.L.J.--[Ed.] Lord Carson delivering the judgment of the Board, in terms approved of Turner, L.J.'s statement of the law to which we have referred. It is, therefore, clear that the rule laid down in Marriot v. Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 Sm. LC 12th Ed. 403 applies to India and the only question for determination in this case is whether, in the words of Turner, L.J.

the decrees or judgments under which the money was originally recovered have been reversed or superseded.

20. It is contended on behalf of the defendant-appellant that the four decrees of the Revenue Court under which these moneys were obtained from the plaintiff are still subsisting and valid and have never been reversed or superseded. It is common ground that these decrees have never been reversed because no appeal was preferred against them though such could have been done. It is, however, contended on behalf of the respondent that the judgment of the Privy Council of June 17, 1929, does in law supersede the four decrees of the Revenue Court, viz. : No. 14 of 1916, No. 36 of 1919, No. 13 of 1923 and No. 8 of 1924, under which the defendant obtained the moneys now sought to be recovered from the plaintiff. Counsel for the plaintiff-respondent strongly relies upon the case in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25 to which we have already made reference.

21. In that case money which had been paid under a decree was held to be recoverable in a later suit on the ground that the decree under which the money was originally recovered had been superseded by a subsequent order of Her Majesty in Council in an appeal arising out of a different suit. The facts of this case are important and we feel it necessary to state them in some detail. In the year 1821 Doorga Purshad, claiming to be heir to his deceased uncle, brought a suit against Shama Purshad Nundy, a debtor to his uncle's estate, for Rs. 23,024 being principal and interest due upon a bond. Pending the decision of this suit Tara Purshad Roy Chowdhury sued Doorga Purshad for one-half of the uncle's property and in 1829 a compromise was effected in this suit under which Tara Purshad became entitled to a six anna share of the debt due from Shama Purshad to the uncle's estate. Subsequently to this Doorga Purshad obtained a decree against Shama Purshad for the principal and interest due upon the bond. From this decree Shama Purshad appealed to the Rudder Court and pending that appeal in 1831 there was a compromise of that suit also, under which Shama Purshad agreed to pay Rs. 24,217 at the end of three years without interest; in default of which payment Doorga Purshad should be at liberty to realize this amount. This compromise was made without Tara Purshad's knowledge and Shama Purshad did not pay the stipulated amount at the end of three years. In these circumstances Tara Purshad in March 1835 brought another suit against Doorga Purshad claiming a six-anna share of the bond debt together with interest due up to the commencement of Doorga Purshad's first Suit in 1821; and in his plaint he reserved to himself the right of bringing another suit for his share of the interest upon the bond debt from 1821 to July 27, 1829, on which day Doorga Purshad obtained his decree against Shama Purshad. This suit eventually terminated in a decree passed by the Sudder Dewanny Adawlut against Doorga Purshad for the entire amount of principal and interest sued for. From this decree Doorga Purshad appealed to Her Majesty in Council who decided in 1849 that the decree of the Sudder' Court ought to be reversed and that Doorga Purshad was not liable to Tara Purshad for the whole amount of his six anna share of the debt with interest. Their Lordships held that Doorga Purshad ought to be considered as a trustee for Tara Purshad and was only responsible for so much of the debt as he actually received or without his wilful default might have recovered and an order was made accordingly by their Lordships that the decree of the Sudder Dewanny Adawlut should be reversed; that Doorga Purshad should be declared liable to Tara Purshad for a six-anna share of what he had received or might thereafter receive or what he might have received but for his wilful default for and in respect of the sum of Rs. 24,217-12-7 and the interest thereon and the case; was referred back to the Sudder Dewanny Adawlut to ascertain and carry out and enforce the rights and liabilities of the parties as above declared.

22. Between March 11, 1835, when the above suit was commenced and July 5, 1849, when the judgment of the Privy Council was pronounced upwards of 14 years had elapsed and during that interval in the year 1842 an action was brought by Tara Purshad to recover Rs. 4,392-12-9 being the amount of interest on the six-anna share of the bond debt, for which in his previous proceedings he had reserved his right to sue and in this action he obtained a decree for Rs. 4,593-12 9 with interest at 12 per cent, amounting to Rs. 11,127-15-3. This sum was eventually paid by Doorga Purshad to Tara Purshad in two instalments. Several attempts were made by Doorga Purshad to have this last decree for interest reviewed but upon the failure of these attempts he eventually brought a suit against Tara Purshad to recover back the said sum of Rs. 11,127-15-3 which be had been compelled to pay. The Court in India dismissed the claim but eventually upon appeal to Her Majesty in Council Doorga Purshad's claim to return of the money was successful. Their Lordships held that the order of the Privy Council passed in J u]y 1849, superseded the decree for Rs. 11,127-15-3 which Tara Purshad had obtained against Doorga Purshad in respect of interest in the suit instituted in 1842. In this case it was undoubtedly held that a decree was superseded by a subsequent order of Her Majesty in Council in an appeal arising out of another suit. The terms of the order which was held to supersede the earlier decree were, however, very wide and somewhat unusual. Dealing with this particular order which their Lordships held superseded the earlier decree Turner, L.J. observed:

It was plainly intended by that order that all the rights and liabilities of the parties should be dealt with under it, and it would be in contravention of the order to permit the decree obtained by Tara Pershad pending the appeal on which it was made to interfere with this purpose. Moreover, the decree now under appeal rest on precisely the same cause of suit as the original decree which was reversed by the order of Her Majesty in Council. The plaint in the case on which the original decree was obtained describes the interest recovered by the decree under appeal as part of the same cause of suit, separated only for the convenience of Tara Purshad, and the decree under appeal, therefore, were mere subordinate and dependent decrees, and their Lordships do not think that these decrees can be held to have remained in force when the decree on which they were dependent had been reversed.

23. It is clear that great stress is laid in the judgment upon the form of the order of Her Majesty in Council which was said to supersede the earlier decrees and also it is pointed out that the decrees superseded were nothing more than decree subordinate and dependent upon the decree which was actually appealed against and dealt with by their Lordships. Turner, L.J., in terms says that the order of Her Majesty in Council was intended to deal with all the rights and liabilities of the parties and that being so it followed that the order of Her Majesty in Council was bound to supersede any decree dependent and subordinate to the decree actually before the Privy Council in appeal and reversed on such appeal. The case in Shama Purshad Ray Chowdhury v. Hurro Purshad Ray Chowdhury 10 MIA 203 : 3 WRPC 25, was considered by a Bench of five Judges of the Calcutta High Court in Jogesh Chunder Dutt v. Kali Churn Dutt 3 C 30 : 10 LCR 5. The facts of that case were that in a suit by the defendant against the plaintiff for enhancement of rent, the Court of first instance and the High Court passed decrees for enhanced rent. The Privy Council, in the year 1873, reversed those decrees, and held that the rent could not be enhanced. Before the date of the Privy Council judgment the defendant obtained several other decrees for enhanced rent against the plaintiff. No application was made by him for review of those judgments, but in 1875 he brought this suit to recover the difference between the amount of enhanced rent recovered and the fixed rent which he was bound to pay. It was held, Garth, C.J., and Jaqkson, J. dissenting, that the decrees for enhanced rent were superseded and that the plaintiff was entitled to recover the sums which he had paid.

24. Garth, C.J., in a dissenting judgment with which Jackson, J., concurred was of opinion that the plaintiff could not recover the sums which he had been compelled to pay by way of enhanced rent under the earlier decrees. In his judgment he dealt at length with the case in Shama Purshad Roy Chowdhury v. Eurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25, and was of opinion that the principle laid down in that case could not be extended and applied to the facts of the particular case which he was then considering. He laid great stress upon the form of the order of Her Majesty in Council in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25, and observed that in the case which he was considering the order which it was said superseded decrees not appealed against was very different. In his judgment, except upon special facts similar to those in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25, the rule of Marriot v. Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 Sm. LC 12th Ed. 403, would apply and that money paid under legal compulsion could not be recovered. The case in Jogesh Chunder Dutt v. Kali Churn Dutt 3 C 30 : 10 LCR 5 was considered by their Lordships of the Privy Council in Naganna Naidu Bahadur Zamindar Garu v. Venkatappayya 21 ALJ 726 : 76 Ind. Cas. 594 : AIR 1923 PC 167 : 50 IA 301 : 46 M 895 : (1923) MWN 554 : 33 MLT 262 : 45 MLJ 657 : 25 Bom. LR 1290 : 18 LW 913 : 28 CWN 568 : 39 CLJ 312 (PC) and was in terms overruled. At p. 729 Page of 21 ALJ.--[Ed.] Lord Carson observes:

It is no doubt true as stated in the judgment of the High Court, that in the case in Jogesh Chunder Dutt v. Kali Charan Dutt 3 C 30 : 10 LCR 5 the decision in Shama Purshad Roy Ghowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25 was extended by a majority to apply to a case like the present, where it was sougth to recover the difference between the enhanced rent recovered and the fixed rent which the tenant was bound to pay. But for the reasons already stated their Lordships of the Privy Council cannot agree with the interpretation of the case in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25 applied by a majority of the Court, and prefer the reasoning and conclusion set forth in the judgment of Garth, C.J. which were concurred in by Jackson, J.

25. It is, therefore, clear that the Calcutta decision to which we have referred is no longer any authority and cannot be relied upon by the plaintiff-respondent in this case. In Naganna Naidu Bahadur Zamindar Garu v. Venkatappayya 21 ALJ 726 : 76 Ind. Cas. 594 : AIR 1923 PC 167 : 50 IA 301 : 46 M 895 : (1923) MWN 554 : 33 MLT 262 : 45 MLJ 657 : 25 Bom. LR 1290 : 18 LW 913 : 28 CWN 568 : 39 CLJ 312 (PC), their Lordships of the Privy Council, as we have stated previously, expressly approved of the rule in Harriot Hampton (1797) 7 TR 269 : 2 Esp. 546 : 4 RR 439 : 2 Sm. LC 12th Ed. 403 as enunciated by Turner, L.J. in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Chowdhury 10 MIA 203 : 3 WRPC 25. The facts of this case were that a zamindar instituted a suit against his tenants to enforce the acceptance by them of pattas 1314 and 1315 F, fixing the rents on the produce sharing system The tenants pleaded that the rents had been commuted in previous settlement on a cash basis, that the arrangement was a permanent one and that the zamindar was not entitled to impose on the tenants pattas on differ-tent terms. The suit was dismissed by the Collector and his decree was affirmed by the District Judge. On second appeal the High Court decreed the suit. On appeal to the Privy Council it was held that the decree of the District Judge was based on findings of fact which could not be interfered with in second appeal and the decree of the District Judge was restored. Pending the appeal in the Privy Council the zamindar instituted suits for recovery of rents on the basis of the pattas and those suits were decreed, and no application was made for the stay of the trial of any of those suits pending the appeal to the Privy Council. After the decision of the Privy Council the tenants instituted suits to recover the amounts paid by them under the decrees in the subsequent suits. It was held that those decrees could not be deemed to have been uperseded by the decision of the Privy council in earlier suits and the tenants were not entitled to recover. At p. 729 Page of 21 ALJ.--[Ed.] Lord Carson observed:

The true question, therefore, in such case is, whether the decree or judgment under which the money was originally recovered has been reversed or superseded.

26. He pointed out that the judgment of their Lordships which was said to supersede the decrees for rent did not propose to deal with anything but the actual facts of the case before them. In fact he points out that the only point decided by their Lordships was that the High Court under the circumstances had no power to reverse the decision of the Subordinate Courts. He then dealt with the facts in Shama Purshad Roy Chowdhury v. Hurro Purshad Roy Choudhury 10 MIA 203 : 3 WRPC 25, and pointed out that they differed very materially from the facts of the case which he was considering and later observed that the order under consideration in Shama Purshad Roy Choudhury v. Hurro Purshad Roy Choudhury 10 MIA 203 : 3 WRPC 25, was intended to deal with all the rights and liabilities of the parties and such was not the case in the order which was then under consideration. From this latter case of the Privy Council it is in our view clear that decrees not appealed against are not to be deemed to have been superseded by an order of Her Majesty in Council or a decree of an Appellate Court unless it was the intention of their Lordships or such Appellate Court in passing such order or decree expressly to deal with all the rights and liabilities of the parties. On the other hand, if the order or decree was not intended to deal with anything more than the facts of the particular case and the relief claimed in that 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 later decision, which is said to supersede the earlier decrees, had been given before the suits, in which the earlier decrees were passed, had been determined.

27. In the present case no mention was made of these decrees to their Lordships of the Privy Council when they decided the case in Kunwar Mohammad Abdul Jalil Khan v. Khan Mohammad Ubaid Ullah Khan 120 Ind. Can. 651 : AIR 1929 PC 228 : 57 MLJ 177 : 33 CWN 1061 : 6 OWN 637 : (1989) ALJ 930 : 30 LW 395 : 50 CLJ 357 : 31 Bom LR 1393 : 51 A 675 : 56 IA 330 : (1929) MWN 734 : Ind. Rul. (1930) PC 11 (PC), on June 17, 1929. It is true that in the judgment their Lordships observe that the plaint also alleged that after the deaths of Abdul Latif and Abdul Shakur, defendant No. 1, in September 1915, instituted suits for arrears of rent against tenants of the properties and in May 1916, instituted a suit for profits which jeopardised the plaintiff's right and made it necessary to institute the present suit. However, no reference is made to the fact that the suit for profits therein referred to ever terminated in a decree against one of the appellants then before the Privy Council. Neither is there any reference to any subsequent suits for profits or the results of such suits. The last paragraph of the judgment of their Lordships of June 17, 1929, makes it clear in our view that their Lordships did not intend their order to affect anything but the rights of the parties then under consideration. The judgment concludes in these words:

In these circumstances the appeal must be allowed and the decrees of the lower Courts varied by giving the plaintiffs decree for the properties covered by the auction-purohases and not included in the wakf, but in the circumstances their Lordships are of opinion that the plaintiffs should only recover half their costs in the Courts below and here and they will humbly advise His Majesty accordingly.

28. There is no suggestion in this paragraph that their Lordships ever intended their order to deal with anything more than the plaintiff's right to possession of the properties in dispute other than the wakf properties. Though mention was made earlier to a suit for profits nothing is said in the judgment as to whether the judgment was to have any effect whatsoever upon the result of such a suit. Applying the reasoning of Garth, C.J., in Jogesh Chunder Dutt v. Kali Churn Butt 3 C 30 : 10 LCR 5, which was approved of by their Lordships in Naganna Naidu Bahadur Zamindar Garu v. Venkatappayya 21 ALJ 726 : 76 Ind. Cas. 594 : AIR 1923 PC 167 : 50 IA 301 : 46 M 895 : (1923) MWN 554 : 33 MLT 262 : 45 MLJ 657 : 25 Bom. LR 1290 : 18 LW 913 : 28 CWN 568 : 39 CLJ 312 (PC) we are of opinion that the order of their Lordships of the Privy Council of June 17, 1929, was not intended and did not supersede the decrees for profits which the present defendant Ubaid-UUah Khan had obtained against the present plaintiff Abdul Jalil Khan and that being so the latter had no right to recover the sums which he had been compelled to pay to Ubaid-Ullah Khan under those decrees.

29. We greatly regret having to arrive at this conclusion because clearly Ubaid-Ullah Khan had no right whatsoever in equity to this money. It was held in June 1929 that he had no right whatsoever to be in possession of any of the properties other than the wakf properties and that being so he has no moral right to retain the moneys which he had recovered by way of profits in respect of the properties which he wrongfully held. It has been urged by Counsel on behalf of the plaintiff-respondent that the plaintiff was helpless in the matter and in a way he was. Ubaid-Ullah Khan's name was recorded in the revenue papers as being the person entitled to possession of the properties which it was later held belonged to the plaintiff. On the other hand the plaintiff took no steps whatsoever to appeal against these decrees or to obtain a stay of the proceedings until the question of title was ultimately determined in the Privy Council. It has been pointed out with considerable force by Counsel for the plaintiff-respondent that there was little chance of the plaintiff ever obtaining a stay of the proceedings, but, be that as it may, we are bound to hold that as the decrees under which the moneys were obtained by Ubaid Ullah Khan have not been superseded, the plaintiff cannot sue in this suit to recover the same. That being so, the decision of the learned Civil Judge cannot be sustained and must be set aside. Holding, as we do, that the plaintiff in this case had no cause of action, it is sufficient to dispose of this appeal. However as the matter may be taken further we think it only right that we should give our views upon other matters which were argued before us.

30. As we have observed previously the plaintiff in this suit only gave the defendant credit for the profits of 1-3rd of the share of Abdul Latif Khan in this village which he had made wakf. The plaintiff contended that it had been finally decided between the parties by the judgment of his Court of April 21, 1922, that the wakf was only valid as to 1-3rd on the ground that the doctrine of marzulmaut applied. On the other hand, the defendant-respondent contended that even if the plaintiff had a cause of action in this suit he was bound to give the defendant credit for the profits of the whole of Abdul Latif Khan's share in this village which the latter had made wakf, because by their judgment of June 17, 1929, their Lordships of the Privy Council had held that the wakf of the whole of Abdul Latif Khan's share was a valid one. As we have stated earlier in this judgment the first suit brought by Abdul Jalil Khan and others against Muhammad Ubaid-Ullah Khan, was Suit No. 256 of 1916. In that suit the plaintiffs claimed possession of the whole of the properties in dispute and their case with regard to the wakf properties was that the wakf was a purely fictitious transaction which had never been acted upon between the parties. In that suit they never raised the question whether or not the wakf was invalid as to 2-3rds by reason of marzul-maut.

31. The learned Civil Judge who tried the case by his judgment of July 18, 1917, dismissed the plaintiffs' claim except in so far as it related to the properties comprised in the wakf. He held that the wakf was not binding and that the defendant as mutwalli thereof had no right to possession of the wakf properties as against the plaintiffs. Consequently he degreed the plaintiff's claim with regard to the wakf properties only. On appeal to. this Court the finding of the learned Civil Judge with regard to the properties other than the wakf properties was upheld, but with regard to the wakf properties his finding was reversed. This Court held that Ubaid-Ullah Khan was rightfully in possession of the wakf properties as mutwalli and that the wakf was a valid and legal one. Consequently this Court dismissed the whole of the plaintiffs' suit. As we have stated earlier whilst the appeal was pending in this Court Ubaid-Ullah Khan had instituted Suit No. 41 of 1917 in the Court of the Civil Judge of Aligarh, against Abdul Jalil Khan and others including lessees of the wakf properties claiming possession of these properties. In that case the defendants again raised the question of the validity of the wakf and pleaded that in any event the wakf could only be valid as to a third by reason of the doctrine of marzulmaut. The learned Civil Judge eventually held that the wakf was only valid as to a third and this finding was upheld by this Court in its judgment in appeal dated April 21, 1922. In the meantime the plaintiffs in Suit No. 256 of 1916 had appealed to His Majesty in Council against the dismissal of their suit in appeal by this Court. The decree of this Court which held that the wakf was only valid as to 1/3rd was never appealed against and became final between the parties, but unfortunately on June 17, 1929, their Lordships of the Privy Council delivered judgment in appeal against the decree of this Court dated January 15, 1921. By their order their Lordships upheld the validity of the wakf and declined to give the plaintiffs possession of the wakf properties as against the defendant Ubaid-Ullah Khan who claimed to be mutwalli thereof.

32. It has been argued on behalf of the plaintiff Abdul Jalil Khan that the matter was finally determined by this Court in its judgment of April 21, 1922, in the appeal in Suit No. 44 of 1917. By the decree of this Court the wakf was held to be valid only with respect to a third. On the other hand, it is argued on behalf of the defendant Ubaid-Ullah Khan that the last. order upon the matter is the order of His Majesty in Council of June 17, 1929, which declares the wakf to be valid in its entirety. That being so, the defendant alleges that the latter decision of the superior Court must prevail and that it must be held now that the wakf was valid in its entirety and that in any event the defendant was entitled to the profits of the whole of the wakf property. It is clear from a perusal of the judgment of their Lordships of the Privy Council of June 17,1929, that no mention was made on behalf of the plaintiff of the judgment of this Court of April 21, 1922, declaring the wakf to be valid only as to a third. It was open to the plaintiff to have raised this matter in the Privy Council and to have argued that the matter was concluded by a final decision between the parties, but this for some reason or another he did not do. However, Counsel for the plaintiff argues that the judgment of the Privy Council does not go so far as to hold that the wakf was valid in its entirety and that all that was held was that the wakf was not a purely fictitious transaction which bad never been acted upon and therefore was not invalid upon that ,ground. We, however, cannot agree with that view. From a perusal of the judgment of this Court of January 15. 1921, in the appeal in Suit No. 256 of 1916 and the judgment of the Privy Council on appeal from the decree of this Court, it is clear that both Courts dealt with the question of the validity of, the wakf. It is true that the plaintiffs in this litigation never raised the question of marzul-maut but they could have done so and should have done so as they were attacking the defendant's rights to possession as mutwalli under the wakf. In our judgment this was a ground of attack which they should have taken from the' outset and as they failed to take it in the Suit No. 256 of 1916 which culminated in the judgment of the Privy Council of June 17, 1929, we are of opinion that the latter judgment is conclusive upon the question as to the validity of the wakf. In our view their Lordship of the Privy Council held that the wakf was a valid one and gave the defendant Ubaid-Ullah Khan a right to possession of the whole of the wakf properties as mutwalli. Their Lordships in their judgment observe:

It was admitted in the plaint that Abdul Latif, Khan in April 1809, some months before his death had executed a wakfnama of all his properties, but it was alleged that this wakfnama was a mere paper transaction and was not binding on the plaintiffs.

33. Later it is stated:

The High Court agreed with the findings of fact of the Subordinate Judge and approved of his reasons for holding that the suit was barred as regards the properties covered by the auction-purchases. They held, however, that he was wrong in giving the plaintiffs a decree in respect of properties which were included in the wakf created by Abdul Latif, as the gift of those properties to the wakf had been duly perfected by Abdul Latif in accordance with the requirement of Muhammadan Law, and as after his death, defendant No. 1 had been duly appointed mutwalli of the wakf. They therefore dismipsed the plaintiff's appeal and allowed defendant No. 1's cross-objections as to the wakf properties.

34. In the concluding portion of their judgment their Lordships observe:

It has been found by both Courts that the gift to the wakf was duly perfected according to rules of Muhammadan Law and by the High Court, that defendant No. 1 was duly appointed mutwalli or trustee of the wakf after the founder's death and the plaintiff's claim to the wakf properties has therefore been rightly disallowed.

35. In those circumstances their Lordships of the Privy Council dismissed the plaintiffs' claim with regard to the wakf properties. In our judgment the only interpretation that can be placed upon this judgment is that their Lordships held that the wakf was valid in its entirety. We are wholly unable to agree with the plaintiff-appellant's contention that all that their Lordships of the Privy Council held was that the wakf was something more than a paper transaction and that it was valid only to the extent permitted by Muhammadan Law in circumstances such as those in which this wakf was made. It is argued that the judgment of the High Court dated April 21,1922, in the appeal in Suit No. 44 of 1917 is in no way inconsistent with the judgment of their Lordships of the Privy Council of June 17, 1929, and that the true position is that the two judgments must be read together in this way that the Privy Council judgment finally determined that the wakf was validly made and was not a paper transaction and that the High Court judgment of April 21, 1922, finally determined the extent of its validity, viz. to the extent of 1-3rd only. In our view, however, the two judgments are in conflict and that being so the judgment of the Privy Council must prevail by reason of the fact that it is a judgment of a superior Court delivered later than the judgment of the High Court which is inferior to it. If the plaintiff-respondent wished to rely upon the finality of the High Court judgment he should have raised the matter in argument in the Privy Council before the judgment of their Lordships was delivered on June 17, 1929

36. Where there are two conflicting decisions upon the rights of the parties the later decision must, in our view, prevail particularly when the later decision is that of a superior Court. In our view the decree of this Court of April 21, 1922, does not operate as res judicata between the parties, but the judgment of the Privy Council of June 17, 1929, does so operate. In our judgment the effect of this latter decision is that it is finally determined that the wakf was valid with regard to the whole of the properties comprised in it. The question as to which of two conflicting decisions between the parties is to operate as a bar by reason of res judicata has been considered in a number of cases in this Court and in each case it has been held that the later decision is to prevail. In Mallu Mal v. Jhamman Lal 1 ALJ 416, it was held that where there were conflicting decisions regarding the subject-matter in dispute between the parties to a suit or their predecessors in-interest, the latest of those decisions would override the earlier decisions and operate as res judicata. This case was followed in Dambar Singh v. Munawar Ali Khan 31 A 531 : 30 Ind. Cas. 775 : AIR 1915 All. 420 : 13 ALJ 764, and was again followed in a recent case in Amar Singh v. Gobind Ram : AIR1927All717 . In this latter case it was held that in a case where two decrees operate as res judicata, one as against the plaintiff and the other as against the defendant the later decree must prevail over the former because it shuts out consideration of the former. In our judgment we are bound to follow these cases and to hold that the order of His Majesty in Council being not only the later in point of time, but also the order of a superior Court must prevail over that of the High Court.

37. It is contended, however, on behalf of the plaintiff-respondent that even if the order of His Majesty in Council is to prevail over the earlier decree of the High Court, there is a decree of a competent Court later than the order of the Privy Council which now finally determines the question in favour of the plaintiff. That decree is a decree of an Assistant Collector of the first class in a profits suit dated March 12, 1930. This suit, viz., No. 45, was brought by Ubaid-Ullah Khan for his share of the profits in the village of Kakathal. He alleged that after the decision of His Majesty in Council he was entitled to the profits of the whole of the wakf property in this village and his suit was resisted upon the ground that it had been finally determined between the plaintiff and the defendant, Abdul Jalil Khan, that the wakf was only valid to the extent of 1-3rd and consequently the plaintiff Ubaid-Ullah Khan was only entitled to the profits of 1-3rd of the wakf property in this village. It was held by the Assistant Collector that upon a true construction of the order of His Majesty in Council the plaintiff was only entitled to the profits of a third of the wakf property in this village. No appeal was filed against this decision and Ubaid-Ullh Khan thereby allowed it to become final. On behalf of the plaintiff-respondent it is contended that this is a decision of a competent Court and it has now been finally determined that the wakf created by Abdul Latif Khan is only valid to the extent of 1-3rd and that Ubaid-Ullah Khan as mutvjalli of the wakf is only entitled to a third of Abdul Latif Khan's share in the village of Kakathal. On behalf of the appellant Ubaid-Ullah Khan it has been contended that this decision being a decision of a Revenue Court cannot operate by way of res judicata in a subsequent suit in a Civil Court.

38. According to the state of the authorities in this Court it is now too late to contend that a decision of a Revenue Court upon a question of title cannot operate by way of res judicata in a subsequent suit in a Civil Court between the parties. It has been held by this Court in numerous cases that decisions of a competent Revenue Court upon questions of title must be regarded as decisions of a Civil Court and can operate as a bar by way of res judicata in subsequent suits brought in the Civil Courts. This was clearly laid down in Bihari v. Sheo Balak 29 A 601 : AWN 1907 189 : 4 A L J 546 and again in a Full Bench case in Bed Saran Kuar v. Bhagat, Deo 33 A 153 : 10 Iud. Cas. 924 : 8 ALJ 341. Later decisions of this Court on the same question are in Thakur Hanwant Singh v. Jhamola Kunwar (12) and Amar Singh v. Gobind Ram : AIR1927All717 . From these cases it is clear that this Court has consistently held that a decision of a former suit in a Revenue Court may and frequently does operate as a bar to a subsequent decision upon the same issue in a Civil Court. The matter, however, does not rest there because it is contended on behalf of the defendant-appellant Ubaid-Ullah Khan that the decision of the Revenue Court dated March 12, 1930, was a nullity by reason of the fact that the learned Assistant Collector had no jurisdiction whatsoever to deal with the question of title. Those proceedings in 1930 claiming profits were brought under the Agra Tenancy Act, 1926, which differed very materially from the earlier Tenancy Acts. Under the present Tenancy Act of 1926 a suit for profits is brought in the Revenue Court under the provisions of Sections 227 and 230. However the jurisdiction of the Revenue Court when a party raises a plea of proprietary right is govered by Section 271. It is provided in that Section that if in any suit under Chap. XLI, the defendant pleads that the plaintiff has not got the proprietary right entitling him to institute the suit and such question of proprietary right has not been already determined by a Court of competent jurisdiction, the Revenue Court shall frame an issue on the question of proprietary right and submit the record to the competent Civil Court for the decision of that issue only. A claim for profits under Section 227 of the Act is a suit institutqd under Chap. XIV, and, therefore, the suit for profits to which we have referred which was brought by Ubaid-Ullah Khan against Abdul Jalil Khan in the Court of the Assistant Collector of Allahabad was a suit governed by Section 271, Agra Tenancy Act. In that suit the plaintiff contended that he was entitled to the profits of the whole of the wakf property in the village, whereas the defendant contended that he was entitled to the profits of only 1-3rd of the wakf property. There was, therefore, a sharp conflict between the parties as to the extent of the plaintiff's, rights in the village. He claimed to be mutwalli of the whole of the property previously owned by Abdul Latif Khan in the village which he alleged had been made wakf, whereas the defendant contended that only a third of this property had validly become wakf property and it was of that portion only that the plaintiff was entitled to profits. The suit, therefore, raised an issue as to whether the plaintiff had or had not the proprietary right which entitled him to institute his suit with respect to 2-3rds of his claim. In such a case the Assistant Collector should have referred this question of proprietary right to a competent Civil Court for decision but clearly from his judgment he did not do so. He decided the question himself and this, in our view, he had no jurisdiction to do by reason of Section 271, Agra Tenancy Act, to which we have referred.

39. It has been argued on behalf of the plaintiff-respondent that there was no need in this particular case to refer the question of proprietary right to a competent Civil Court because it had been already determined by a Court of competent jurisdiction, viz., this High Court by its decree of April 21, 1922. As we have pointed out, difficult questions arise as to whether this decree of the High Court or the order of the Privy Council of June 17, 1929, really decides the matter. In the case before the Assistant Collector each party put forward his own view of the effect of the decree of the High Court and the later order of the Privy Council and in our view it could not be said in those circumstances that the question of proprietary right had already been determined by a Court of competent jurisdiction. Here there was a real dispute between the parties and the plea of proprietary right was not one raised merely to oust the jurisdiction of the Court. In our view the Agra Tenancy Act, 1926, Section 271, read with Expl. (1), clearly contemplated that where there is a real and bona fide dispute between the parties upon the question of proprietary right and question must be submitted to a competent Civil Court for decision and should not be decided by the Revenue Court. The Revenue Court is only empowered to deal with the whole suit where it is clear that the question of proprietary right has already been determined by a competent Court. Where there is a real doubt about the matter, as there was in this case, where there are apparently conflicting decrees and orders, then the Revenue Court must send an issue upon the question of proprietary right to the Civil Court for a decision. If the Revenue Court decides a question of proprietary right when it should not have done so, then its decree is a decree passed in a case where it has acted without jurisdiction. That being so, the decree can be regarded as a nullity and does not operate by way of estoppel or res judicata between the parties in subsequent proceedings. In Rangasamy Naicken v. Tirupati Naikcen 28 M 26 it was laid down that if a decree is passed by a Civil Court which had absolutely no jurisdiction to pass it even a party to the proceeding may impeach it as a nullity, though it had not been set aside in appeal or otherwise. In Alisha v. Husain Bakhsh 1 A 588 the effect of the decree passed by a Court having no jurisdiction was considered by a Bench of this Court. At p. 590 Page of 1 All.--[Ed.] Pearson, J. observed:

The question which, was tried and determined in that suit is not res judicata because the Court which determined it was not a Court of competent jurisdiction and is, therefore, open to be adjudicated in the present suit. The decree passed in that suit being invalid for want of jurisdiction and a nullity, we cannot say that the present plaintiff, as the successor-in-title of Rajbibi, was bound to take steps to get it set aside by means of appeal or that because he omitted to do so, it has become binding upon him, and that he is precluded from bringing this suit.

40. This case is a clear authority for the proposition that a decision by a Court having no jurisdiction to entertain a suit cannot be pleaded as res judicata in a subsequent suit between the same parties or their successors raising similar issues. In Peyare Lal v. Banke Lal AIR 1925 All. 650 : 95 Ind. Cas. 406 : LR 6 A 157 Rev. it was expressly laid down by Mukerji, J. that where a judgment has been delivered by a Court of incompetent jurisdiction, that is to say, by a Court which had no jurisdiction to hear the case, the judgment cannot be pleaded as res judicata. Manohar Lal v. Baldeo Singh : AIR1927All505 ., is a case to the same effect. In our judgment in the present case the learned Assistant Collector had no jurisdiction to determine the question of title between the parties and his decision cannot be regarded as a final decision between the parties which would prevent either of them raising the question again. In our view the decree of the learned Assistant Collector of Aligarh dated March 12, 1930, is no bar to the present defendant-appellant contending that, even if the plaintiff respondent had a cause of action in Suit No. 44 of 1917, he was entitled to credit to the extent of the profits for the whole of the property of Abdul Latif Khan in this village which, in our view, has been held by His Majesty in Council to have been validly dedicated by Abdul Latif Khan.

41. The defendant-appellant also contended that even if the plaintiff had a cause of action in Suit No. 44 of 1917, his claim was barred by limitation. Counsel for the defendant-appellant argued that the suit was for money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff's use and that being so, the period of limitation of three years began to run from the dates upon which the moneys were received by reason of Article 62, Limitation Act. Admittedly, in this case all the moneys sought to be recovered were received by the defendant-appellant more than three years before the suit was instituted. This view of the law is supported by the case in Raja Nilmoney Singh Deo Bahadur v. Sharoda Pershad Mukerjee 18 WR 434. In that case it was held that money paid under a decree obtained in the Revenue Court which was subsequently held to have been superseded and modified by a decree of the Civil Court could be recovered but that the cause of action accrued not on the date when the decree of the Revenue Court was superseded or modified but on the dale when the money was actually recovered from the pit in tiff.

42. On the other hand, the plaintiff-appellant has contended that he had no cause of action whatsoever for the recovery of this money until the decrees of the Revenue Courts were superseded and assuming them to have been superseded, his cause of action only arose on the date of the order of His Majesty in Council which, it was contended, superseded those decrees. The question of limitation is not free from difficulty, but having regard to the view which we take of the effect of the order of His Majesty in Council this question of limitation does not arise for decision in this case. We have held that the decree of the Revenue Court was not superseded by the order of His Majesty in Council and consequently no question of limitation arise for decision. We, therefore, express no opinion upon this part of the case.

43. For the reason which we have given, the plaintiff's claim for the recovery of moneys paid by him to the defendant under the revenue decrees to which we have referred must fail. In our judgment the decree of the learned Civil Judge of Aligarh dated February 21, 1934, muse be set aside and the plaintiff's claim dismissed. The result therefore is that Appeal No. 140 of 1934 is allowed and the plaintiff's claim dismissed in its entirety. Having regard to the view which we take of the case the question of pendente lite interest raised by the plaintiff-respondent's cross-objection need not be considered. We have held that the plaintiff's claim fails and therefore any claim to pendente lite interest falls with the claim. The result, therefore, is that the cross-objection must be dismissed.

44. After the order of His Majesty in Council dated June 17, 1929, the decree-holder took proceedings to execute his decree in the Court of the Civil Judge of Aligarh. Abdul Jalil Khan claimed that he was entitled to possession not only of the property expressly found to belong to the plaintiffs by their Lordships of the Privy Council but also over 2-3rds of the property made walcf by Abdul Latif Khan. He contended that the order of His Majesty in Council was not concerned with the extent to which the wakf was valid but only with the question whether the wakf was something other than a fictitious transaction. It was the decree-holder's case that the question of the extent of the validity of the wakf was finally determined by this Court by its decree of April 21, 1922, and that being so he was entitled to possession of 2-3rds of the property which had been made wakf by Abdul Latif Khan. Ubaid-Ullah Khan filed an objection in these execution proceedings' and claimed that His Majesty in Council by their order of June 17, 1929, had finally determined that the wakf was valid with regard to the whole or the wakf property and that being so, the decree-holder was not entitled to possession of any of the property of Abdul Latif Khan which was made wakf by him. This objection is the subject-matter of Execution First Appeal No. 279 of 1934. The Civil Judge disallowed the objection of Ubaid-Ullah Khan holding that the effect of various decisions was that the plaintiffs were held to be entitled to possession of 2-3rds of the property of Abdul Latif Khan which was made wakf by him. Whilst dealing with First Appeal No, 140 of 1934 we have considered this question. For the reasons which we have previously given we are satisfied that the order of His Majesty in Council dated June 17, 1929, entitles Ubaid-Ullah Khan as mutwalli to possession of the whole of the property of Abdul Latif Khan which was made wakf by him and that it is not open to the decree-holders to allege that the wakf is only valid to the extent of 1-3rd of the property comprised in it. In our judgment the objection of Ubaid-Ullah Khan should have been allowed and that being so, Execution First Appeal No. 279 of 1934 is allowed and the order, of the lower Court disallowing the objection is set aside.

45. The result, therefore, is that First Appeal No. 191 of 1933 is dismissed with costs. First Appeal No. 140 of 1934 is allowed and the decree of the lower Court is set aside and the plaintiff's claim is dismissed. The plaintiff must pay the costs of the defendant in this Court and in the Court below. The cross-objection of the plaintiff is also dismissed with costs. Execution First Appeal No. 279 of 1934 is allowed and the order of the lower Court disallowing the objection is set aside and the objection of the judgment-debtor allowed. The decree-holder must pay the coats of the judgment-debtor in this Court and in the Court below.


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