1. This is an appeal by the Official Assignee, representing one of the defendants and arises out of a suit for declaration of title in, and recovery of possession of a one-third share of a certain tank. The facts leading up to the institution of this suit are no longer in dispute, and may be briefly stated as follows: The property in suit belonged originally to one Gopesh Pada Datta who mortgaged it to the plaintiff Jagabandhu Mallik along with other properties on 29th June 1909. On 20th April 1920, the plaintiff instituted a mortgage suit against Gopesh, and obtained a decree sometime in 1922, and on 7th November of that year purchased the property in suit in execution of his decree. Meanwhile on 28th October 1920 (that is to say, after the plaintiff had instituted his mortgage suit, but before he had obtained his decree), Gopesh mortgaged the property to the defendant Apurba Krista Roy, (now represented by the Official Assignee) and on 17th July 1924, Apurba instituted a mortgage suit against Gopesh, making the present plaintiff, Jagabandhu, a party. That suit was decreed on 13th September 1924, and on the 13th January 1926 Apurba purchased the property in suit in execution of his decree, and obtained possession in due course, thus dispossessing the plaintiff, who, on 27th February 1927 instituted the present suit with a view to the establishment of his title and recovery of possession. From the above statement of facts, it is clear that the plaintiff acquired a clear title in the property in suit by his purchase of 7th November 1922, and that the defendant acquired nothing by his purchase of 13th January 1926, Gopesh's title having already been extinguished by the plaintiff's prior purchase.
2. The main contention of the defendant throughout these proceedings has been that the suit is barred by the rule of constructive res judicata inasmuch as the plaintiff was made a party to the defendant's suit of 1924 and was duly served with notice, but nevertheless did not appear and contest. Both the Courts below have found that the rule of constructive res judicata applies in the present case, and they have also referred in their respective judgments to the question of the applicability of the rule of lis pendens. The trial Court refused to allow the question of lis pendens to be raised, on the ground that no such case had been set up in the plaint, and accordingly dismissed the suit, but the lower appellate Court allowed this question to be raised, as all necessary facts had been stated in the plaint, and holding that the rule of lis pendens should prevail over the rule of constructive res judicata allowed the appeal and decreed the plaintiff's suit.
3. Before us it has been conceded on behalf of the plaintiff respondent that the view of the lower appellate Court, that the doctrine of lis pendens should prevail over the rule of res judicata cannot be supported, but it is contended that the rule of constructive res judicata has been wrongly applied to the present case, inasmuch as nothing was alleged by Apurba in the suit brought by him in 1924, in derogation of the plaintiff's title. This aspect of the matter appears to have been entirely overlooked by all concerned in both the Courts below, and it has been canvassed for the first time in this Court. The question is however a pure question of law, and the facts out of which the question arises being no longer in dispute, there is in my opinion no bar to the question being considered by this Court. Both the Courts below appear to have assumed that the plaintiff's title and the priority of his mortgage had been called in question by Apurba in the suit instituted by the latter in 1924, but on looking into the plaint in that suit, it appears that this is not the case. All that Apurba alleged in that suit with regard to Jagabandhu's title was that after the mortgage to the plaintiff, the pro forma defendants 2, 3 and 4 came into possession on the basis of purchase and mortgage that it had therefore been thought necessary that the trial should take place in their presence, and that they had accordingly been made parties as pro forma defendants. This paragraph of the plaint does certainly suggest that the present plaintiff, Jagabandhu, was a subsequent mortgagee, but the plaint does not say so in so many words; and this being so, it seems to me that the contention of the learned Advocate for the respondent is correct namely, that nothing was alleged in the plaint in Apurba's suit, in derogation of the present plaintiff Jagabandhu's title.
4. The position is therefore that the present plaintiff was a prior mortgagee and purchaser, and nothing was alleged in the plaint in Apurba's suit in derogation of his priority: his paramount title was outside the scope of the controversy in that suit, and in these circumstances, it must, in my opinion, be held, (as was held by their Lordships of the Judicial Committee of the Privy Council in Radha Krishna v. Khurshid Hussain AIR 1920 PC 81, that the rule of constructive res judicata does not apply. I would accordingly dismiss the appeal, and decree the suit with costs in all the Courts.
5. I agree.