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Tamiz-un-nissa Bibi Vs. Syed Mohammad Husain - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1928All127; 108Ind.Cas.462
AppellantTamiz-un-nissa Bibi
RespondentSyed Mohammad Husain
Cases ReferredChhote Lal v. Chandrabhan A.I.R.
Excerpt:
- - the district judge thinks that the plaintiff was not bound to plead his position as mortgagee because such a plea was inconsistent with his plea that he had a good title as vendee. 176. to allow him to do so would be clearly permitting an evasion of the rule of estoppel......ground was that the section could not be invoked because the munsif was not competent to try the present suit.3. both reasons appear to us to be incorrect. the district judge thinks that the plaintiff was not bound to plead his position as mortgagee because such a plea was inconsistent with his plea that he had a good title as vendee. but the suit was substantially one for possession, and we have no doubt that the present plaintiff should have pleaded that, even if the sale of the daughter's one-fifth share was invalid, yet she could not recover possession until the mortgage on that one-fifth portion was paid off. he was bound to take this plea, if not in the original written statement at any rate in argument.4. the question of the competency of the munsif to try the present suit is.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit for possession brought by the plaintiff-respondent against the defendant appellant. The facts briefly are as follows: One Riyaz Husain mortgaged his property to the plaintiff in 1911. He died leaving three daughters and a son. The son falsely alleging a gift of the whole property, sold it to the plaintiff in June 1920 for Rs. 4,000. Of this sum Rs. 2,400 were set off against the money due on the mortgage, and the balance paid over. The consequence was that the plaintiff from holding as a mortgagee commenced to hold as a vendee. One of the daughters of Riyaz Husain, namely, Mt. Tamiz-un-nisa, brought a suit to obtain possession of one-fifth of the property on the ground that it was hers by inheritance from Riyaz Husain and that her brother had no right to dispose by sale of her one fifth share. She brought the suit in the Court of the Munsif, and was successful. It must be presumed that the suit, as brought by her, was within the competency of the Munsif to decide. The present plaintiff did not resist, the suit for possession on the ground that, even if the son of Riyaz Husain could not give him any title as vendee in one-fifth of the property, still he was entitled to fall back on his rights as mortgagee in respect of the one-fifth share and retain possession of the whole property.

2. This suit was brought by the plaintiff in the Court of the Subordinate Judge for the purposes of setting up this plea which he omitted in the other suit and to recover possession which he lost by the decree in that suit. The trial Court held that the first suit operated as res judicata. On appeal to the District Judge of Moradabad the latter upset its finding on two grounds. One ground was that Section 11, Civil P.C. could not be invoked, because there was no obligation on the plaintiff in the former suit to plead his right to retain possession as mortgagee. The second ground was that the section could not be invoked because the Munsif was not competent to try the present suit.

3. Both reasons appear to us to be incorrect. The District Judge thinks that the plaintiff was not bound to plead his position as mortgagee because such a plea was inconsistent with his plea that he had a good title as vendee. But the suit was substantially one for possession, and we have no doubt that the present plaintiff should have pleaded that, even if the sale of the daughter's one-fifth share was invalid, yet she could not recover possession until the mortgage on that one-fifth portion was paid off. He was bound to take this plea, if not in the original written statement at any rate in argument.

4. The question of the competency of the Munsif to try the present suit is one not free from difficulty. The District Judge appears to have held that he was not so competent, because the present suit was filed in the Court of the Subordinate Judge. It is to be noticed that the relief of possession was valued at Rs. 1,350 and the relief for mesne profits at Rs 90. We have not before us the plaint in the former suit, but it must be taken that the appellant's suit for possession was within the competency of the Munsif. The situation then is as follows: The former suit by the appellant for possession was within the competency of the Munsif. The present suit by the respondent for possession is not within his competency. The omission of the relief of the mesne profits from the present suit would not bring the suit within the competency of the Munsif. It follows that the valuation in one Court or other must have been wrong. Having made no objection in the former suit to the valuation the present plaintiff cannot plead that valuation was wrong. The present valuation, therefore, appears to be arbitrary. It has been held that a plaintiff cannot get rid of estoppel by arbitrary valuation of the second suit or by enhancement of the claim or by over-valuation-Badri Singh v. Labi Singh [1917] 1 Pat. L.W. 418-or by adding a claim for mesne profits, Chhote Lal v. Chandrabhan A.I.R. 1928 All. 176. To allow him to do so would be clearly permitting an evasion of the rule of estoppel. We are of the opinion that the Munsif would have been competent to give the relief asked for in the present suit if this present suit had been valued on the same basis as the former suit. For these reasons we hold that the District Judge was wrong and that the trial Court was correct.

5. For the above reasons we allow this appeal and dismiss the suit with costs throughout to the defendant-appellant.


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