N.M. Golvalker, J.
1. This is a Letters Patent appeal by defendant No. 2 against the judgment and decree in second appeal No. 674 of 1950 of Bhutt, J. (as he then was) in favour of the plaintiffs (respondents Nos. 1 to 4) reversing the dismissal of their suit by the two lower Courts. The defendants Nos. 1, 3 and 4 have been made respondents Nos. 6, 7 and 8. Plaintiff No. 5 (respondent No. 5) having died during the pendency of the appeal, her name was struck off.
2. The appeal arises out of a suit for partition and possession of their share of certain fields filed by the plaintiffs (respondents Nos. 1 to 4 and the deceased respondent No. 5). The suit was contested by defendant No. 2 (the appellant in this appeal) only. Defendant No. 1 admitted the claim and defendants Nos. 3 to 5 did not file their written-statement.
3. The plaintiffs claimed half share in the fields as successors of Rozukhan, the other half being with the defendants, defendant No. 1 getting one-fourth and the rest getting one-fourth. The contesting defendant No. 2, while denying the fields to be the joint property of the ancestors of the parties, had set up title over the same of a certain Dargah of which he claimed to be the Mutwalli. The plaintiffs, anticipating the contest, had pleaded that the decisions in the civil suits between theparties and their predecessors (No. 40-B of 1940decided on 2lst July 1941 and No. 57-B of 1946decided on 17th July 1947) operated as res judicataand the title of the parties to the property in suitstood conclusively established.
4. The first two lower Courts found in favour of defendant No. 2 and, holding the property to be that of the Dargah, dismissed the suit. It was held by those two Courts that the previous decisions did not operate as res judicata against defendant No. 2 inasmuch as in those suits he was a party in his individual personal capacity while in the suit in question he was contesting as Mutwalli of the Dargah and could, therefore, plead that title as bar to the plaintiffs' claim in suit. The learned Single Judge of this Court in second appeal reversed the finding of both the lower Courts and held that the previous two decisions operated as res judicata against defendant No. 2 and consequently decreed the suit, there being otherwise no dispute with regard to the extent of share held by each party. Hence this Letters Patent appeal.
5. Two questions arise for determination in this appeal, namely, first, whether the two previous decisions operate as res judicata against the contesting defendant No. 2 so as to preclude him from denying the plaintiffs' title, as well as of the other parties to the decisions including himself and setting up a title of a third party over the property in suit, and, secondly, whether, if the said decisions do not operate as res judicata, the property was dedicated to the Dargah or to certain individuals and their heirs with certain obligations with regard to the Dargah.
6. The learned Single Judge has discussed in detail the various rulings relied upon by the lower Courts in order to show that they are not applicable to the facts of the instant case. As we do not feel disposed to disagree with him, it is not necessary for us to examine those decisions again.
7. It is not disputed that it was Rozukhan, the predecessor of the plaintiffs, who had in the previous suits set up the title of the Dargah in defence against the personal title claimed by the present defendants as plaintiffs therein (vide plaint in civil suit No. 40-B of 1940, Ex. P/16 and judgment in that suit Ex. P/l). The appellant before us, as plaintiff in that suit, had successfully contested the title of the Dargah and established the title of the family with a view to share the profits of the fields. Having, therefore, secured an advantage on that occasion, he cannot now be allowed legally to set up a title which he himself had successfully disputed.
As a matter of fact, the appellant before us had himself, as one of the plaintiffs, filed suit No. 57-B of 1946 against the present plaintiffs and had claimed therein a share in the profits of the fields in suit. It was obviously not to his advantage then to plead the rights, if there be any, of the Dargah of which he had then become the Mutwalli. The learned Single Judge was, therefore, right in holding that the defendant No. 2 was estopped from now taking a stand inconsistent with that he had successfully taken before to secure certain benefits, in order to deny that very benefit to the plaintiffs in the instant suit.
8. That apart, the previous decision would operate as res judicata on the question of the title of the parties to the fields in suit. In the instant suit, the parties are litigating under the same title as in the previous suit. All the requisite conditions necessary to attract the provisions of Section 11 of the Civil Procedure Code exist in the instant suit. It is true that the defendant No. 2 as Mutwalli ofthe Dargah has chosen to plead in defence the title of the Dargah. But the plaintiffs' suit against him is in his individual capacity. The question then arises whether the plea of the defendant-appellant as Mutwalli alters the character of the suit so as to lead to the conclusion that the parties are not litigating under the same title as in the previous suit.
9. The crucial test for determining whether the parties are litigating in a suit under the same title as in the previous suit is of the capacity in which they sued and were sued. Here it cannot be disputed that the appellant was made a defendant as a member of the family owning the property in a suit and entitled to claim a share in the partition thereof. That capacity of his could not be altered by his claiming to hold the property on behalf of the Dargah and not in his own rights. A similar position was considered by the Calcutta High Court in Priombada Debi v. Johuri Lal, AIR 1941 Cal. 574, which has been relied upon by the learned Single Judge. We may, however, usefully quote the following observations made therein:
'There remains the other ground urged on behalf of the respondents, viz., that the question cannot be res judicata as the plaintiff and the defendants in the present suit are litigating under the different titles from their title in the rent suit. This contention does not appear to be sound. I shall first consider whether the plaintiff in these two suits is litigating under different titles. There can be no question that the plaintiff is the same in both suits. In the rent suit he sued as landlord for rent. In this suit he is suing as the owner of the land for ejectment against alleged trespassers. In both these cases he is suing in the same capacity, viz., his individual capacity as owner of the land. In both cases he is suing in his own interest. It is not a case of a person bringing a suit in his individual capacity and then bringing another suit as representing the interests of others. The expression 'title' in Section 11, Civil P. C. does not refer to the cause of action on which the suit is brought but it refers to the interest or capacity of the party suing or being sued. If the plaintiff in both suits is suing in his individual capacity and in his own interest then he is litigating under the same title. It must be held therefore that the plaintiff is litigating under the same title in both suits. 'The position with respect to the defendants is the same. They are sued in both suits in their individual capacity. It is true that in this suit the defendants assert that they are in possession as shebaits of the deity who they assert is the real owner, but they are not being sued as shebaits. They are sued in their individual capacity and they virtually are pleading jus tertii. This does not convert the suit which is against them personally into a suit against the shebaits.' The suit remains a suit against the defendants personally. Thus the defendants in both suits are being sued in the same capacity. It cannot, therefore, be said that they are litigating under different titles.'
(underlining (here in ' ' ) is ours). Thus the appellant, who had in the previous suit sued in his own individual capacity as a member of the family and who has now been sued in the same capacity, cannot alter the character of the present suit by his plea asserting the Dargah's title as Mutwalli. It follows, therefore, that the parties are litigating under the same title as in the previous suit. The previous decision, therefore, operates as res judicata here. The learned Single Judge was right in reversing the findings of both the lower Courts on that ground.
10. Thus in view of the previous decisions it must be held that the property in suit is privateproperty of the parties and not of the Dargah. In this view of the matter, the remaining question whether the dedication was personal to certain individuals or was to the Dargah need not be considered. Suffice to say, we are in entire agreement with the construction put by the learned Single Judge on the entries in the Muafi Register (Exs. 2 and 3, D/3). In the previous litigation also, the entries were similarly interpreted. That interpretation would be binding on the parties, though not exactly on the principle of res judicata but as a judicial precedent (see Sahu Medho Das v. Mukand Bam, 1955-2 SCR 22 at p. 31: ((S) AIR 1955 SC 481 at p. 485).
11. In the result, this appeal fails and is dismissed with costs. The appellant shall pay the costs of the respondents in all Courts and bear his own. Counsel's fee within the scheduled rate, if certified.
12. The learned Single Judge by his judgment,which is the subject-matter of this appeal, haddisposed of also the connected appeal No. 674 of1950 which is also before us as Letters PatentAppeal No. 4 of 1957. In that appeal also, thesame questions were involved. This decision will,therefore, govern the said Letters Patent AppealNo. 4 of 1957 and the same is also, therefore, dismissed with costs. The appellant shall pay costs ofthe respondents throughout and bear his own.Counsel's fee within the scheduled rate if certified.