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Jamadar and ors. Vs. Imam Bakhsh and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in16Ind.Cas.431a
AppellantJamadar and ors.
Respondentimam Bakhsh and ors.
Excerpt:
res judicata - former suit for possession--second suit for possession. - .....three brothers, who owned certain property. makhdum bakhsh died 30 or 40 years ago and his widow, musammat jeoni, was in possession not only of her share in his estate but also of the shares inherited from him by his brothers, karim and hasan. it has been found by the court below, and this is a finding of fact, that as regards the share of karim and hasan in makhdum bakhsh's property, the possession of musammat jeoni was in lieu of dower and was not adverse. in the suit out of which this appeal has arisen, the plaintiffs claimed a 3/4th share out of makhdum bakhsh's share in the properly, the remaining 3/4th being the share of musammat jeoni. after jeoni's death, the defendants, who are her personal heirs, brought a suit for possession of the property of which jeoni had been in.....
Judgment:

Banerji, J.

1. The only question in this appeal is whether the claim of the plaintiff respondents is barred by the res judicata. It admitted that, so far as the plaintiffs other than the plaintiffs Nos. 1 and 4 are concerned, their claim is not so barred As regards the plaintiffs Nos. land 4 Purged hat a decree was obtained against them by the Present defendants on the 5th or May 1905 in respect of this very property and that the claim is, therefore, not maintainable. The facts are briefly these: Makhdum Bakhsh, Karim, and Hasan were three brothers, who owned certain property. Makhdum Bakhsh died 30 or 40 years ago and his widow, Musammat Jeoni, was in possession not only of her share in his estate but also of the shares inherited from him by his brothers, Karim and Hasan. It has been found by the Court below, and this is a finding of fact, that as regards the share of Karim and Hasan in Makhdum Bakhsh's property, the possession of Musammat Jeoni was in lieu of dower and was not adverse. In the suit out of which this appeal has arisen, the plaintiffs claimed a 3/4th share out of Makhdum Bakhsh's share in the properly, the remaining 3/4th being the share of Musammat Jeoni. After Jeoni's death, the defendants, who are her personal heirs, brought a suit for possession of the property of which Jeoni had been in possession in her life-time against one Daraj and the present plaintiffs Nos. 1 and 4. In that suit, they said that the present plaintiffs Nos. 1 and 4 had no right to remain in possession. The claim was decreed on the 5th of May 1905. It is manifest that in the previous suit what was claimed was such right as Jeoni had in the property. It was this right which was decreed to the appellants. It has been found in this case that the right which Musammat Jeoni had was the right to continue in pos session of the share of the present plaintiffs in lieu of her dower and that it was not an adverse proprietary right, Therefore, the decree in the former suit only awarded to the appellants the right which Musammat Jeoni had to remain in possession in lieu of her dower. That decree, therefore, cannot preclude the plaintiffs from maintaining the present suit. In the previous suit, they could not resist the claim to recover such possession as Musammat Jeoni has, i.e., in lieu of her dower and they could not defeat the claim in that suit by setting up their proprietary title. The Court below was, therefore, right in holding that the claim is not barred by the rule of res judicata. I dismiss the appeal with costs.


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