1. Transfer of Property Act relates only to immoveable property should not make us blind to the consideration that the legal principle underlying it might appropriately be applied to moveable also in cases where the aliened of the moveable is proved to have had notice of the pending litigation at the time of the alienation. It is not unconditionally extended to moveable because (among other reasons) it is considered that, while a pending litigation as regards immoveable might very well be presumed to be inquired into by intending purchasers pendent like, the same cannot be presumed as regards pending litigation about moveable, which usually pass from hand to hand and the litigation about which does not usually end in a decree for the return of specific moveable but in the award of pecuniary damages and compensation, either as the only relief or an adequate alternative relief. Reliance is further placed on the case of Niaz-ullah Khan v. Nazir Begam (2) by the respondents' learned Vakil. In that case, the first litigation related to a house, and the second related to another distinct immoveable property which was sold pendents lite by the party in the first suit who was unsuccessful. Though a question was raised in the first case which involved the title of the unsuccessful party to the house and to all other properties (which she claimed as heir of a deceased person), the immoveable property in question in the second suit was not specifically mentioned and was not the subject of an issue which 'directly and specifically' raised the title to it in the first suit, and in that view that case might also be distinguished. In the present case, the issue in the first suit directly and specifically raised the question of title to the very same immoveable property which is in dispute in this second suit, though the subject-matter of the first suit was only the crops raised on that property. I might be permitted to finally remark (with great deference) that some of the English cases which unduly whittle down the beneficent principles which underlie the doctrines of impendent and rest judicator by the rather subtle refinements need not be too much relied on by Indian Courts. In the result, I would hold that the decision in the former suit between the plaintiff's vendor and the 2nd defendant that the plaintiff's vendor had no title to plaint land and that the 2nd defendant is the owner thereof, is rest judicator against the plaintiff and in favor of the 2nd defendant in this case; and reversing the decree of the lower Courts I would dismiss the suit with costs throughout to be paid by the plaintiff to the 2nd defendant (appellant).
2. The question involved in this appeal is whether the suit out of which it arises is barred, by the doctrine of rest judicator (Section 11 of the Civil Procedure Code.)
3. The facts are , as follows:--There was a previous suit in which the question at issue was as to the right to manse profits accrued due on the land, that is, the subject-matter of the present suit. The present suit is for recovery of the same land. The f suit was dismissed, it having been held the the person in possession (the 2nd defenda in the present proceedings) had title to land, and was not liable to account for it profits to the then plaintiff. It is admitted that the plaintiff cannot succeed in the present suit unless it is decided that the 2nd defendant has no title to the land, in opposition to the decision in the first suit.
4. The provisions of Section 11, Civil Procedure Code, seem to be satisfied and prima facie it would seem that the suit is barred.
5. It is argued, however, that there are two cases which support the view of the lower Courts that the present suit is maintainable.
6. The respondent's argument will be best considered on examination of those cases and the grounds (if any) on which the present case can be distinguished from them.
7. The first of the cases relied upon is Govind Baba Gujar v. Jiyibai Saheb (l). The reasoning on which that decision proceeded 1 understand to be as follows: The question was whether or not a previous decision declaring an adoption to be invalid was binding as res judicata on the defendant. It was held that the decision was not binding, inasmuch as the decision was pronounced after the defendant derived his title to the property in question (consisting of certain ornaments), and that though the said decision was pronounced in a suit which had already been instituted at the date when the defendant's title arose, yet the actual decision being after the said date the decision could not be made to relate back to the time when the suit was instituted and could not thus be made to affect the title of the defendant, because the doctrine of lis pendens (Section 52 of the Transfer of Property Act) was inapplicable to cases in which the property involved is inoveable. The authorities cited for the inapplicability of the doctrine of lis pendens were Wigram v. Buckley (3) and other English decisions. The Court in Govind Baba Gujar v. Jijibai Saheb (1) evidently considered that by this distinction a person who purchases moveable property pendente like is placed in the same position as a stranger. HE is not privy to the action and is not bound by what transpires in it. The case of Dye dem Foster v. Earl of Derby (4) is referral to. There two persons A and B were owners of two different closes (though (sic)ginally A was owner of both). A and B (sic) institute 1 suits in ejectment against C ragard to th3 two closes. In the suit B C evidence of B's title was given, and (sic) suit decreed against C. On that C counted to a decree against himself in the other suit (A v. C). It was held that in the absence of proof that there was any agreement between A and C that the evidence in the suit between B and C should be evidence in the suit between A and C., that evidence could not be considered to have been part of the proceedings in the suit of A v. C. The Court in Govind Baba Gujar v. Jijibai Saheb (1) considered that the inapplicability of the doctrines of lie nerdens to moveable property rendered the person through whom the party to the 2nd suit was claiming, a person in position similar to that existing between A and B in Dos dem, Foster v. Earl of Derby (4) It may, therefore, be stated shortly that the decision in Govind Baba Gujar v. Jijibai Saheb (1) is that if A derives his title to moveable property from B at a times when a suit is pending against B in which B's title is questioned (and in which the decision is ultimately against B's title), then A's predecessor-in-title is B of the dubious title, and not B of the title as destroyed by adverse adjudication.
8. The decisions in Brinsmead v. Harrison (5) and Brinsmead v. Harrison (6) also cited in Govind Baba Gujar v. Jijibai Saheb (1) refer to the doctrine that when there are two joint tort-feasors a judgment (though unsatisfied) against one of them is a bar to a subsequent suit against the other, the reason being thus stated by Lord Blackburn in Brinsmead v. Harrrison (6). The question raised upon this record is whether the claim of the plaintiff against two joint wrong-doers is put an end to by a judgment recovered in an action against one of them without shewing that that judgment has been satisfied. 'I apprehend that it is, on the ground that transit in rein judicatam, or upon the general principle of convenience which is expressed in the maxim interest reipublicae ut sit finis litium. Is it for the general interest that, having once established and made certain his right by having obtained a judgment against one of several joint wrongdoers, a plaintiff should be allowed to bring a multiplicity of actions in respect of the same wrong? I apprehend it is not; and that, having established his right against one, the recovery in that action is a bar to any further proceedings against the others.'
9. There seem to be very clear grounds, therefore, for holding that the decision in Govind Baba Gujar v. Jijibai Saheb (1) does not apply to the present case. Here the first suit was for mesne profits. It seems to me to be clear from the judgment in the first suit that there the right to immoveable property was directly and specifically in question within the terms of Section 52 of the Transfer of Property Act so that here the doctrine of Us pendens applies and the plaintiff cannot say: ' I purchased from him whose title was under adjudication and not from him whose title has been adjudicated upon against him, from him whose title was dubious and not from him whose title is set at rest.'
10. The decision in Niaz-ullah Khan v. Nazir Begam (2) is the second case relied upon by the respondent. There the facts were as follows:--The previous adjudication was pending when the plaintiff in the latter suit derived his title. It had reference to immoveable property but it was property other than th3 property which was the subject-matter of the latter suit. The Court in effect held that the matter directly and substantially in issue .in the former suit was title to proparty other than that which was the subject of the latter suit, and that, therefore, Section 11 (then section 13) of the Civil Procedure Code was no bar to the second suit. The decision in Niaz-uttah Khan v. Nazir Begam (2) is also, therefore, inapplicable to the present case. For these reasons section 11 seems to me to be directly applicable.
11. The suit should, therefore, have been dismissed with costs.
12. The appeal will consequently be allowed with costs throughout.