C.M. Lodha, J.
1. This is a defendant's second appeal.
2. It arises cut of a suit for possession of certain apartments in the house situated in village Chhoti Sadri. The plaintiff is admittedly in possession of other apartments in that, house. His case is that he purchased the house in question by a registered sale deed dated 7.7.1959 from one Gabba, who had purchased the same from one Kishna by sale deed dated 8th September, 1932. It is alleged that the defendant who is the son of Gabba continued to occupy the apartments in question without any authority and consequently the plaintiff filed the present suit for possession of the apartments in dispute on 5.10.1962. The defendent appellant resisted the plaintiff's suit and pleaded that the whole house belonged to him and his father Gabba had no right to the sell the same to the plaintiff. It was further pleaded by him that the whole of the sale price was paid by him to Kishna when the sale deed Ex-1 was obtained from Kishna & the name of Gabba was only got entered 'benami' in the sale deed Ex. A.1.
3. After recording the evidence produced by the parties the learned Munsiff, Chhoti Sadri decreed the plaintiff's suit and his judgment and decree were upheld on appeal by the defendant by the District Judge, Partabgrah by his judgment dated 5.8.1965. Consequently, the defendant has filed this second appeal.
4. Learned Counsel for the appellant has given up the defendant's case that the whole of the house belonged to Bhagirath alone and that Bhagirath alone had purchased it from Kishna. He has, however, strenuously urged that the sale deed Ex. A1 is in favour of Gabba as well as the defendant Bhagirath, who are father and son and were admittedly living separately at the time the house in question was purchased by them from Kishna. It is, therefore, argued that unless the plaintiff is able to prove that Bhagirath's name was entered 'benami' in the sale deed Ex. A.1. or that the whole of the sale price was paid by Gabba alone, Gabba and Bhagirath will both be deemed to be joint purchasers of the house each having half share in it.
5. The contention raised by the learned Counsel for the appellant is not to without force. Admittedly there is no evidence on the record to show that the whole of the sale price was paid by Gabba alone to the vendor Kishna. It is also not denied that Bhagirath was living separately from his father when the house in question was purchased by sale deed Ex. A1. The courts below have come to the conclusion that Gabba alone will be deemed to be the exclusive owner of the property because Gabba alone was present, at the time the sale deed Ex. A. 1 was presented for registration and Bhagirath did not attend the registration office for getting the sale deed registered in his favour. The learned District Judge has also observed that in accordance with the then prevalent practice Gabba alone has been mentioned as the purchaser in the registration office and he had not stated that the property was purchased jointly by him and his son Bhagirath. It is true that Bhagirath has failed in this attempt to prove that he alone purchased the property from Kiihna. But for that reason alone it cannot be said that the property belonged to Gabba alone. The circumstances pointed out by the learned District Judge, are, in my opinion, perfectly compatible, with the position taken by the learned Counsel for the appellant that both Gabba as well as Bhagirath must be considered as joint purchasers of the house and it should further be presumed in absence of any evidence to the contrary that they had each half share in it. 4 Witnesses have been produced by both the parties to support their respective cases of exclusive ownership. True it is, that none of the parties has taken the position that Gabba as well as Bhagirath were the joint purchasers. The plaintiff tried to show that Gabba was the exclusive owner and the defendant attempted to prove that he was the sole owner and Gabba's name was merely got entered benami. However merely because Bhagirath failed to prove himself to be the exclusive owner of the whole house, it cannot be concluded that in absence of such proof Gabba alone should be deemed to be the exclusive owner and it is open to the court find out where the truth lies. In my opinion, the truth lies in between the two namely that Gabba and Bhagirath were both joint owners of the property. The conclusion that I have arrived at in this connection is further fortified by the fact that the other son of Gabba, Badrilal used to live with Gabba but his name was not got included in the sale deed Ex. A.1 an one of the vendees. The explanation submitted on behalf of the respondent in this connection is because Bhagirath happened to be the elder son of Gabba Bhagirath's name by alone was got entered in the sale deed as a joint vendee along with Gabba. This explanation, in my opinion, is not at all convincing and runs counter to ordinary course of human conduct. It may be relevant here to point out that Kaloo is Badrilal's wife's brother and the suggestion made by the learned Counsel for the appellant that in order to deprive Bhagirath of his legitimate share in the house Gabba executed a sale deed of whole of the house in favour of Kaloo cannot be said to be altogether baseless Be that as it may, the fact remains that the sale deed Ex. A.1 on which both the parties based their respective claims stands in favour of Gabba as well as Bhagirath, and there is no reliable evidence from either side to show that the name of any of the two vendees was entered 'benami' out of love or affection for each other or for any other consideration There is also no convincing evidence as held both the counsel below that the consideration for the sale deed Ex. A1 proceeded wholly either from Gabba or Bhagirath In these circumstances, the only coi elusion which can be drawn is that both Gabba and Bhagirath are owners of the house in question in equal shares The finding of the learned District Judge that Gabba alone was the exclusive owner of the property because Bhagirath has not been able to prove his case that he exclusively purchased the property and that Bhagirath was not present at the time of registration is wholly untenable and cannot be sustained, and I would not hesitate to say that it is a finding based on no evidence, but on mere surmise, and is consequently not binding on me in second appeal. In this view of the matter the plaintiff is not entitled to get possession of the apartments in possession of Bhagirath, who as I have already stated above is entitled to remain in joint possession of the house along with the plaintiff, who has stepped into the shoes of Gabba.
6. Learned Counsel for the respondent next urged that even if that be the view of this Court the defendant's plea that he is joint purchaser of the house in question along with Gabba is barred by the principle of resjudicata and in support of his contention he has referred to the certified copy of the judgment Ex. 3, dated 25 8 1962 in Civil Appeal No. 68 of 1961. This was a judgment given in a suit instituted by Bhagirath with respect to certain apartments alleged to have been rented out by him to one Rahim Bux. The precise question whether Gabba alone was the purchaser of the house by by sale deed Ex. A.1 does not appear to have been made a point of controversy though incidentally it has been observed in that judgment that 'evidence on the record show that the house in question had been purchased by Gabba. From this, it would follow, that Gabba had every right to sell property which he had purchased himself'. This finding, on which great emphasis has been laid by the learned Counsel for the respondent, in my opinion, does not decide the question whether Bhagirah was a joint purchaser of the house along with Gabba. There is is no denying the fact that Gabba had purchased the house, and he had also a right to sell it to the extent of his share. Thus the precise point which has been canvassed before me was in my opinion not directly and substantially in issue in the suit in which the judgment Ex. 3 was given. Apart from that resjudicata is a mixed plea of fact and law, and if the respondent wants to rely on it on the basis of Ex. 3, it was his bounden duty to have produced the plaint, written statement and other relevant documents in that suit which could show that all the conditions for the application of the principle of resjudicata were fulfilled. Since it has not been done nor was this plea relied upon in any of the two courts below. I do not think it would be proper to delve into this matter further as in my opinion on a bare perusal of this judgment it cannot be said that the matter in issue in the present case was directly and substantially in issue in that suit and had been finally decided.
7. Lastly, learned Counsel for the respondent submitted that the appeal filed by the defendant before the first appellate court was barred and so also the appeal in this Court, in as much as no appeal was filed by him from the judgment given by the trial court in suit No. 120 of 1962, instituted by the defendant with an alternative prayer for declaration of his half share in the house is question, even though that suit too was dismissed by the same judgment by which the plaintiff's suit out of which this appeal arises was was decreed by the trial court. Unfortunately for the respondent even this plea was not raised before the first appellate court, where it should have been raised. Then again, learned Counsel is not able to say whether any issues had been struck in suit No. 120 of 1962, and if so whether there were common issues in both the suits Apart from that, learned Counsel for the appellant has invited my attention to Narhari v. Shanker : 1SCR754 , Ram Surat v. Ram Murat A.I.R. 1955 All. 1970 Mad. 76, Kathoom Bivi Ammal v. A. Nadra : AIR1955All543 , wherein it has been held that even when there are two suits a decision given simultaneously cannot be a decision in the former suit, and there is no question of the application of the principle of resjudicata, if the appeal is preferred from the common judgment in one suit. Learned Counsel for the respondent, on the other-hand relied upon Badri Narayan v. Kamdeo Prasad : 3SCR760 , wherein an election matter it was held that 'A' not having appealed against an order in appeal by him setting aside his election the finding on the question whether 'A' had held office of profit had become final and operated as resjudicata and could not be challenged before the Supreme Court, in appeal filed from an order passed in appeal by 'C'. The earlier case of the Supreme Court, Narhari v. Shanker : 1SCR754 was cited before their Lordships and the same was distinguished on the ground that both in view of the facts of the case and provision of law applicable to that case that case did not furnish a guide in determining the question before their Lordships in that appeal. No authority of the Supreme Could taking a view contrary to the one taken in Narhari v. Shanker : 1SCR754 has been brought to my notice. In the facts and circumstances of the present case I am unable to hold that this appeal is barred.
8. No other point was argued by any of the parties.
9. To conclude, I allow this appeal, set aside the judgments and dismiss the plaintiff's suit. In the circumstances of the case, I leave the the parties to bear their own costs throughout.