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Monjur Mondal Vs. Ahammad Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata High Court
Decided On
Case NumberA.F.A.D. No. 2059 of 1947
Judge
Reported inAIR1953Cal155,56CWN506
ActsCode of Civil Procedure (CPC) 1908 - Section 11
AppellantMonjur Mondal
RespondentAhammad Mondal and ors.
Appellant AdvocateApurbadhan Mookerjee, Adv.
Respondent AdvocateSatya Priya Ghose, Adv.
DispositionAppeal allowed
Cases ReferredRahmubhoy Hubibbhoy v. C.A. Turner
Excerpt:
- p.n. mookerjee, j. 1. this appeal is by defendant 1 and it arises out of a suit brought by the plaintiff respondent for declaration of his title to the lands in suit described in schedules 'kha' and 'ga' of the plaint, and for recovery of possession of the 'kha' schedule lands, and for confirmation of possession in the 'ga' schedule lands. the material facts lie within a short compass and they are given below. 2. admittedly, the suit lands originally belonged to one ketabdi. in the year 1916 ketabdi died leaving him surviving as his heirs three sons ahammad, abdul and makbul and three daughters. ahammad is the plaintiff in the present suit, wherein abdul is defendant 2 and mokbul is 'pro forma' defendant 4, and their three sisters are 'pro forma' defendants 5 to 7. defendant 1 is abdul's.....
Judgment:

P.N. Mookerjee, J.

1. This appeal is by defendant 1 and it arises out of a suit brought by the plaintiff respondent for declaration of his title to the lands in suit described in schedules 'Kha' and 'Ga' of the plaint, and for recovery of possession of the 'Kha' schedule lands, and for confirmation of possession in the 'Ga' Schedule lands. The material facts lie within a short compass and they are given below.

2. Admittedly, the suit lands originally belonged to one Ketabdi. In the year 1916 Ketabdi died leaving him surviving as his heirs three sons Ahammad, Abdul and Makbul and three daughters. Ahammad is the plaintiff in the present suit, wherein Abdul is defendant 2 and Mokbul is 'pro forma' defendant 4, and their three sisters are 'pro forma' defendants 5 to 7. Defendant 1 is Abdul's son, but he claims title to the suit lands not as a member of Ketabdi's family but on the basis of a purchase from a previous stranger auction purchaser Nur Mahammad, 'pro forma' defendant 3 in the present suit.

3. According to the plaintiff, there was a partition amongst the abovenanied heirs of Ketabdi after the latter's death, and, as a re-suit thereof, the plaintiff got the 'Kha' schedule lands and Mokbul the 'Ga' schedule lands of the present plaint. It is the plaintiff's case that after the above partition the plaintiff got also the 'Ga' schedule lands from the said Mokbul by exchange with other lands and that, when, Subsequently, in the year 1925, the holding comprising 'inter alia' the suit lands was sold at a rent sale the same was purchased by the heirs of Ketabdi in the 'benami' of Nur Mahammad who is 'pro forma' defendant 3 in the present suit, and the said heirs continued to be in possession as before.

The plaintiff complains that, in or about March 1943, defendant 2 Abdul got a collusive 'kabala' from Nur Mahammad in the name of his son Monjur who is defendant 1 in this suit, and, on the strength of that 'kabala', dispossessed the plaintiff from the 'Kha' schedule lands during the latter part of Talgoon 1349 B. S. and threatened to dispossess him from the 'Ga' Schedule lands also. In the above circumstances the plaintiff brought the present suit on 6-6-1944 for declaration of his title to the suit lands and for recovery of possession of the 'Kha' Schedule lands and for confirmation of his possession in the 'Ga' schedule lands of the present plaint.

4. The suit was contested by defendants 1 and 2; and their defence 'inter alia' was that the disputed holding which was recorded in the landlord's 'sherista' in the name of Mokbul alone was purchased at the rent sale by Nur Mahammad on his own behalf & not as 'benamdar' of anybody and that Nur Mahammad tookdelivery of possession through Court and the plaintiff's suit was barred by limitation. It is further the defence case that when Ketabdi's mortgagee Taradas Das after getting a mortgage decree in his mortgage suit against Ketabdi's heirs, that is, against the present plaintiff and his brothers and sisters, was seeking to execute it against 'inter alia' the disputed property, Nur Mahammad, the auction purchaser at the rent sale, brought a title suit (viz., Title Suit No. 116 of 1939 of the Court of the Munsif at Rampurhat) for declaration of his own title to the said property and for a permanent injunction, restraining the mortgagee Taradas Das from executing his decree against the said property.

In that suit the plaintiff and his brothers and sisters were 'pro forma' defendants and the suit was dismissed by the trial Court but was finally decreed on appeal (Title Appeal No. 21 of 1946) by the learned Subordinate Judge, Birbhum, after overruling the plea raised by Taradas that Nur Mahammad was benamdar of his (Taradas') judgment-debtors, i.e., benamdar of the present plaintiff and his brothers and sisters. The defence, accordingly contended 'inter alia' that the plaintiff's present suit was barred by 'res judicata'; the other material defence that was pleaded in this suit was that the suit was barred under Section 66, Civil P. C., as, admittedly, Nur Mahammad had made his purchase at a Court sale.

5. On the above pleadings several issues were framed, of which issue 1 related to the question of 'benami' and issue 2 to the question of the plaintiff's title; and in issue 4 the question of maintainability of the suit was raised which included within its scope consideration of the bar of 'res judicata' as also the bar under Section 66, Civil P. C., pleaded by the defence.

6. The trial court dismissed the plaintiff's suit holding, 'inter alia', that it was barred by 'res judicata' and also under Section 66, Civil P. C., that Noor Mohammad was not a 'benamdar', that defendant 1's 'kabala' was a genuine and valid document, and that the plaintiff's case of amicable partition and exchange was not' true. The trial Court also appears to have disbelieved the plaintiff's story of adverse possession. Curiously, however, the learned Munsif observed in one part of his judgment that the plaintiff's suit would have been decreed on the ground of adverse possession but for the bars of 'res judicata' and Section 66, Civil P. C.

7. Against the above decision of the trial Court, the plaintiff took an appeal which was heard by the learned Subordinate Judge, Birbhum. This learned Judge reversed the decision of the learned Munsif and decreed the plaintiff's suit holding, 'inter alia', that the suit was not barred by 'res judicata', and, further, that Section 66, Civil P. C., also was no bar to its maintainability as the plaintiff had, according to the learned Subordinate Judge, acquired title by adverse possession, thus making Section 66 inapplicable to this case on the authority of the Judicial Committee's decision in the case of --'Mahammad Abdul Jalil Khan v. Muhammad Obaid Ullah Khan', 33 Cal. W. N. 1061 (PC). Against this decision of the learned Subordinate Judge, the present appeal has been preferred by defendant 1.

8. Before rne two questions have been raised by Mr. Mookerjee who appears on behalf of the appellant. It is contended in the firstplace that the finding of the learned Subordinate Judge on the question of adverse possession is not a proper finding in law, and that, accordingly, the decision of the Judicial Committee reported in -- 'Mahammad Abdul Jalil Khan v. Muhammad Obaid Khan', 33 Cal W N 1061 (PC), upon which the learned Subordinate Judge has relied for holding that the bar of Section 66, Civil P. C, would not be attracted to the present case, has no application. In the second place it has been contended that, upon the materials on record, the suit is clearly barred by 'res judicata'.

9. In my opinion, both the above contentions raised by Mr. Mookerjee are correct and ought to prevail. As I have already said, the finding of the learned Munsif on the question of adverse possession was apparently against the plaintiff, though the learned Munsif made a curious statement in one part' of his judgment that but for the bars of 'res judicata' and Section 66, Civil P. C. the plaintiff would have succeeded in his suit on the ground of adverse possession. The learned Subordinate Judge in coming to-the conclusion that the plaintiff's case of adverse possession has been proved has missed the above finding of the learned Munsif on the point and does not appear to have considered any of the relevant materials on record or any of the reasons given by the learned Munsif for the letter's said finding against the plaintiff on the question of adverse possession.

The learned Subordinate Judge has based his conclusion on this part of the case upon a misconception that the learned Munsif found as a fact that Nur Mahammad did not take actual possession and that the plaintiff had acquired title by adverse possession. As, however, I read the learned Munsif's judgment, there is really no finding that Nur Mahammad did not take actual possession, though, at one place, the learned Munsif refers to the plaintiff's alleged 'admission' that Nur Mahammad took possession through Court but did not take actual possession. There is also no real finding of the learned Munsif in favour of the plaintiff on the question of adverse possession, his apparent finding being as indicated above, just the other way, though there is undoubtedly, the curious observation hardly fitting with the trend of discussion in the learned Munsif's judgment to which reference has already been made by me.

In these circumstances the case will have to go back to the lower Appellate Court for a proper consideration of the question of adverse possession and decision on the plea of bar, raised under Section 66, Civil P. C., unless the appellant succeeds in his other contention, viz., his plea raising the bar of 'res judicata'. It has to be stated here that Mr. Mookerjee has not contended that even if the finding on the question of adverse possession be in the plaintiff's favour the suit would still be barred under Section 66, Civil P. C., and he has, in fact, conceded, that, if the plaintiff's case of adverse possession is proved, the suit would not be barred under Section 66, Civil P. C. on the authority of the Privy Council decision, reported in -- 'Mahammad Abdul Jalil Khan v. Muhammad Obaid Ullah Khan', 33 Cal W N. 1061 (PC), already cited.

There is no complaint that the learned Subordinate Judge has misread that decision, but the grievance is that he has misapplied it against the present appellant on an improper finding in favour of the plaintiff on the question of adverse possession. Unless, therefore, the plea of 'res judicaia' succeeds, me case will have to go back to the lower appellate Court for a proper decision of the two questions of adverse possession and the bar under Section 66,Civil P. C.

10. The plea of 'res judicata' has now to be considered. There is no dispute here as to the material facts. It is admitted on both sides that Nur Mahammad brougnt his suit (T. S. 116 of 1939) against the mortgagee Taradas alone as principal defendant and that the plaintiff and his brothers and sisters were impleaded in that suit as 'pro forma' defendants. It is also admitted that that suit was for declaration of Nur Mahammad's title to the disputed property and for injunction restraining the mortgagee Taradas from executing his decree against the same.

It is also not disputed that the suit was dismissed by the trial Court but decreed on appeal on a finding that the disputed property had been purchased by Nur Mahammad at the rent sale for himself and on his own behalf and not as 'benamdar' of the present plaintiff and his brothers and sisters and that Nur Mahammad was entitled to 'khas' possession of the said property against the other parties in that suit which included also the present plaintiff, though as a 'pro forma' defendant. It is, however, contended by Mr. Ghose, appearing for the plaintiff respondent before me, that in the said previous suit his client was only a 'pro forma' defendant and no relief was claimed against him there in the prayer portion of the plaint and that, accordingly, the decision in that previous suit cannot operate as 'res judicata' against him.

This argument requires careful examination. Mr. Ghose has very naturally relied, amongst others, upon the decisions of this Court reported in -- 'Nibaran Chandra v. Matilal Shaha', 39 Cal W N 938; -- 'Gajanan Agarwala v. Hamidar Rahaman', 40 Cal W N 1205; -- 'Rakhal Das v. Haridas Sarcar', 40 Cal W N 1208', --'Brojo Behari v. Kedar Nath', 12 Cal 580 (FB) and also upon the decisions of the other High Courts reported in -- 'Ramdass v. Vazirsaheb', 25 Bom 589; -- 'Bhudeb Chandra v. Bhikshakar Pattanaik', AIR 1942 Pat 120; -- 'Official Assignee, Bombay v. Madholal Sindhu', AIR 1947 Bom 217 and -- 'Firm Daulat Ram Vidya Parkash v. Sodhi Garbaksh Singh', AIR 1949 E P 213 which are apparently, at least, in favour of his contention: and he has argued that unless all these decisions are held to be wrong or distinguishable from the present case the plea of 'res judicata', raised by the defence, must fail. He has further submitted that on principle also this plea cannot succeed against his client. Mr. Mookerjee, in his turn, has contended that all the said decisions cited by Mr. Ghose, are either wrong or distinguishable, and he has invited me to hold in his favour on this question of 'res judicata'. He has further argued that on principle also the defence plea of 'res judicata' ought to be accepted.

11. The point, thus raised, is indeed of great importance and has often given rise to serious divergence of judicial opinion. In my opinion, however, the pronouncements of the Judicial Committee in the cases of -- 'Munni Bibi v. Triloki Nath', 58 Ind App 158 (PC), -- 'Maung Sein Done v. Ma Pan Nyun', 59 Ind App 247 (PC) and -- 'Kedar Nath Goenka v. Ram Na-rain Lal', 62 Ind App 224 (PC) must be taken to have settled the controversy and I venture to think that in the light of these three decisions of the Judicial Committee the law of 'res judicata' applying to the case of a person who was a 'pro forma' defendant in the earlier suit and against whom no relief was claimed therein has now been clearly and correctly laid down in the Bench decision of this Court reported in --'Hafiz Mohammad v. Swarup Chand Hukum Chand, Firm' : AIR1942Cal1 .

This latter decision contains, in my opinion, a clear and sufficient answer to all the contentions raised by Mr. Ghose on behalf of the plaintiff-respondent for avoiding the bar of 'res judicata' and the decisions, cited by him are of no avail to his client in view of the Judicial Committee's decisions, referred to above, as explained by the said Bench decision of this Court in -- 'Hafiz Mohammad's case' : AIR1942Cal1 which is binding upon me and with which I also respectfully agree. Accordingly, the contentions of Mr. Ghose on the plea of 'res judicata' must be rejected and the plaintiff's suit must be held to be barred by res judicata. (12) I have just stated above my final conclusion and I shall now briefly discuss the reasons therefor in the light of the important judicial pronouncements.

13. It will be well to point out at the outset that a study of the legal position germane to the problem raised convinces me that, although the idea of a 'pro forma' defendant is not unknown in law, the mere fact that a person is described as a 'pro forma' defendant or that no relief is claimed against him in the plaint will not necessarily exempt him from the operation of the rule of 'res judicata'. This proposition appears sufficient from the three Privy Council cases reported in -- 'Munni Bibi v. Triloki Nath', 58 Ind App 158 (PC), -- 'Maung Sein Done v. Ma Pan Nyun', 59 Ind App 247 (PC) and --'Kedar Nath Goenka v. Ram Narain Lal', 62 Ind App 224 (PC) and the decision of this Court in the case of -- 'Hafiz Mohammad v. Swarup Chand Hukum Chand, Firm' : AIR1942Cal1 ,--all cited before, and its soundness can hardly be questioned now.

Clearly also, there is nothing against it in the Bombay case of -- 'Rahmubhoy Hubibbhoy v. C. A. Turner', 14 Bom 408. affirmed on appeal by the Privy Council in -- 'Rahimbhoy Habibhoy v. Charles Agnew Turner', 17 Bom 341 (PC) that case being plainly distinguishable as there the party concerned who was implead-ed in the earlier suit 'expressly for the purpose of discovery only' was held to be not 'a party to the former suit', Vide -- '14 Bom 408 at p. 416 or, as the Privy Council put it, 'was not treated as a party' Vide--'17 Born 341 (PC)' at page 348 to 'that suit'. This Bombay case therefore, would not be relevant to the issue before me and may safely be put on one side. The other cases, cited in this paragraph, are, however, clearly relevant and, 'as already indicated, they contain in themselves a true and sufficient exposition of the principles of 'res judicata' arising for consideration in the present appeal.

14. The decision of the Judicial Committee in -- 'Munni Bibi v. Triloki Nath', 58 Ind App 158 (PC) which, according to me, has. along with the other two Privy Council decisions cited, namely, -- 'Maung Sein Done v. Ma Pan Nyun', 59 Ind App 247 (PC) and -- 'Kedar NathGoenka v. Ram Narain Lal', 62 Ind App 224 (PC) settled the law, applicable to this part of the case, contains the following passage at page 166 of the report, viz.,

'It is true that the appellant did not enter an appearance in the suit, and it is also said that she was not a necessary party to it; taut their Lordships do not regard either of these factors as really material. The appellant was at all events a proper party to the suit and had the right to be heard if she so desired. If she chose to stand by..... it could notaffect her legal position.'

The words are clear and the passage cited needs no elaboration or elucidation. In simple but firm language the Judicial Committee repelled --& repelled authoritatively--the possible contention that to be affected or bound by 'res judi-cata' a person must have been a 'necessary party to the former suit'. They also emphasised broadly the well-known rule of constructive 'res judicata'. The effect of the observations quoted is plainly discernible in the two later cases reported in -- '59 Ind App 247 (PC)' and ---'62 Ind App 224 (PC)' and, apparently again, it was these observations which were referred to with approval by their Lordships of the Privy Council in the passage occurring at the bottom of page 233 of 62 Indian Appeals where their Lordships proceeded to observe that 'it was immaterial whether K, one of the two defendants had entered appearance or contested the suit for she was a proper party and had a right to be heard if she so desired.' In the same case -- '62 Ind App 224 (PC)' the Judicial Committee also sufficiently indicated that the mere fact that no relief was claimed against a party in the earlier suit is not enough to prevent the application of the doctrine of res judicata. The relevant passage occurs at p. 231-2 of the Report where their Lordships observe that

'The Subordinate Judge held that the issue as to the validity of the sale was not 'res judicata' between the plaintiff who was the first defendant and the 'mohant' who was the second defendant in these suits because the plaintiffs who were the auction purchasers of other properties at the Court sale had not sought for any relief against the 'mohant' who was the second defendant but this ruling was given before the recent decisions of this Board as to 'res judicata' between co-defendants which will be referred to later.' It is clear again from p. 233 of the above Report that one of the decisions contemplated in the passage, just quoted, was the case of -- 'Maung Sein Done v. Ma Pan Nyun', 59 Ind App 247 (PC) where the person sought to be bound by 'res judicata' was a 'formal' or 'pro forma' defendant in the earlier suit and against whom no relief had been claimed therein. The position is thus well established that the mere fact that the party sought to be bound by the doctrine of 'res judicata' was a 'pro forma' defendant in the earlier suit or that no relief had been claimed against him therein would not be sufficient to exclude the application of that doctrine.

15. It may be conceded that in the above cases their Lordships were considering the doctrine of 'res iudicata' as applicable between co-defendants; but that, in my opinion, is hardly of any material consequence. In the ultimate analysis the basic principles of 'res judicata'applicable in cases of co-defendants are the same as in any other case. The law of 'res judicata' is contained in Section 11, Civil P. C. and in the recognised general rules bearing upon the subject, and one of the essential ingredients of that law is that the matter in issue in the subsequent suit or proceeding must have been directly and substantially in issue or must be deemed to have been directly and substantially in issue in the earlier suit or proceeding. It was this aspect of the matter which was stressed by their Lordships of the Judicial Committee in the three cases, just cited, and there its implication was elaborated and explained and the considerations there employed are applicable to all cases of 'res judicata'. Viewed in the above light, the doctrine will not, in any way, be basically different in its application between co-defendants from any other cases. The observations of the Judicial Committee, quoted above, will, therefore, be of general application and each case has to be decided in the light thereof.

16. What I have said above does not, in my view, conflict with the decision of the Judicial Committee in -- 'Gokul Mandar v. Pudmanund Singh', 29 Ind App 196 (PC), that the Code of Civil Procedure is exhaustive so far as it goes (Vide the observation at p. 202 of the Report that 'the essence of a Code is to be exhaustive on the matters in respect of which it declares the law') or with Explanation III of Section 11 of the said Code which, on its own terms, is clearly satisfied when there is even an implied admission of the plaintiff's allegations by the other party, which may well include a 'pro forma* defendant. I would, accordingly, hold that a decision in a former suit cannot be avoided by a party merely on the plea that he was a 'pro forma' defendant therein and that no relief was there claimed against him.

This view is clearly supported by the Madras decision reported in -- 'Sethurama lyer v. Ramachandra Iyer', 38 Ind Cas 184 (Mad) and by the decisions of this Court in the cases of --'Mohendra Nath v. Mt. Shamsunnessa Khatum', 19 Cal W N 1280 and -- 'Hafiz Mohammad v. Swarup Chand Hukum Chand, Firm' : AIR1942Cal1 , already cited, and, above all, by the authority of the Judicial Committee in the three decisions, sufficiently discussed above; and I am not inclined to subscribe to the broad proposition laid down in the cases, cited by Mr. Ghose, that against a person who was impleaded as a 'pro forma' defendant in the former suit and/or against whom no relief was claimed therein the plea of 'res judicata' is not available. It seems to me that in these latter cases the position was laid down rather too widely and to that extent at least, although some of them may well be distinguished on facts, they must be deemed to be bad law in view of the pronouncements of the Judicial Committee in the three cases, above cited.

17. It is necessary at this stage to refer to one other decision of the Judicial Committee which may not, at first sight, appear to be quite consistent with the view which I have expressed above. That decision which is reported in -- 'Government of the Province of Bombay v. Pestonji Ardeshir'. was really on the rule of constructive 'res iudicata', embodied in Explanation IV of Section 11, Civil P. C. As, however, the rule was sought to be applied there with regard to a matter, admitted in the previous suit, and such attempt failed it mightbe argued that in that case -- '' the Judicial Committee laid down that when a matter is admitted the rule of constructive 'res judicata' would not be attracted in relation to it in a later proceeding.

Such an argument, however, would be clearly opposed to the express terms of Explanation III of Section 11 of the Code and it is, therefore, no wonder to find that to this argument no real support is available from the above Privy Council decision -- when the same is examined a little carefully. The Judicial Committee, as is clear from the language used at page 147 of the Report, expressly guarded themselves against lending colour to any such inference when they stated in clear .and unambiguous terms that

'if the Government chose to admit certainfacts for the purpose of getting a decision onan important question of law it is impossibleto say that that suit involves a decision asto the facts.'

The portion quoted above is strikingly suggestive and limits the scope of the Judicial Committee's decision. The trend of the relevant discussion at pages 146 and 147 of the report also runs 'counter to the argument, envisaged above, and, besides, the other significant observation at the end of the first paragraph at page 147 that

'the non-agricultural assessment claimed inthe present suit is subsequent to the periodclaimed in the suit of 1918'

may well indicate that that case is distinguishable and does not militate with the view expressed by me on the question of 'res judicata' in the preceding paragraphs of this judgment.

18. Before concluding my discussion on this part of the case, I may just as well refer to one old decision of our Court which is a very near approach to this case on the question of 'res judicata'. That decision which is reported in -- 'Deokee Nundan Roy v. Kalee Pershad', 8 W R 366 (Cal) was given in the year 1867 by a Bench of this Court (Bayley and Phear JJ.) and clearly supports the view which I have taken above on the question or 'res judicata' and which, in my opinion, represents the correct position in law in the light of the high authorities, cited and discussed in the course of this judgment. Phear J. who delivered the judgment of the Court in -- 'Deokee Nundan Roy's Case', 8 W R 366 (Cal) observed 'inter alia' as follows:

'The only question before us is this, namely, whether or not the decree which Kalee Pershad obtained in declaration of his right to be paid by the Collector the share of Mt. Eden and Syud Uzamut Hossein in the surplus proceeds of the revenue sale is binding on the present defendant. It is urged that it is not so; because although he was a defendant in that suit, he was not a principal defendant, but was only made a defendant (as the plaint termed it) 'ikhteatun' (literally 'by way of precaution'); and that the whole tenor of the plaint shows that the claim was made against the principal defendants, and not at all against the precautionary defendants.

We are of opinion that this contention cannot be upheld. The decree in anv suit, must be treated as an adjudication of right as between the plaintiff on the one side, and the defendants collectively and severally on theother, except only so far as the decree itself coniams any modification or reservation in regard to any of the individual defendants. If tne claim whicn the present plaintitf now makes against Kalee Pershad be well-founded, it would have constituted a good defence to the action which Kalee Pershad formerly brought against him and others. It is his own fault that he did not set up that defence at that time. The necessity of putting some term to litigation is the foundation of the rule that any issue which is material to the rights of the parties in the matter of suit between them, whether actually contested or not, shall not afterwards be raised in a subsequent suit between the same parties. And in this respect, a defendant brought in 'pro forma' is in exactly the same situation as any other defendant whatever may be the case with regard to his costs,' Vide 8 W R 366 (Cal) at p. 367.

The observations in the passage cited on the question of 'res judicata', though made in the year 1867, bear quoting even to this day and have not, in my opinion, been affected by the legislative changes made during the intervening. period. They still represent in my view, the correct position in law on the aspect of 'res judicata', relevant to the present case.

19. As a result of the above discussion, I feel bound to hold that the present suit is barred by 'res judicata' by reason of the previous decision in Title Suit No. 116 of 1939, referred to in the plaint. In that suit there was an express issue and, there were in the plaint thereof, the necessary averments of Nur Mahammad's, that is, the present appellant's predecessor's title to the suit property, the present plaintiff was a party to that suit, though in the category of a 'pro forma' defendant, the issue of title was expressly decided in favour of the present appellant's predecessor that is, his vendor Nur Mahammad who eventually got a decree there at the appellate stage declaring his title to the suit property and declaring him entitled also to 'khas' possession thereof, and such decision was necessary to give relief to the said Nur Mahammad'who was the plaintiff in that suit. That decree could not have been passed unless it was found that Nur Mahammad was not a 'benamdar' but a real purchaser at the rent sale and it was 'as a result of that finding' that the said suit (T. S. No. 116 of 1939) was ultimately decreed.

There is no charge of fraud or collusion -- at least nothing has been established -- in regard to that suit and it has not been even' sufficiently alleged, far less proved, that the decree therein had been obtained or allowed to be passed fraudulently or collusively. It appears further that, unlike the Bombay case of -- 'Rahmubhoy Hubibbhoy v. C.A. Turner', 14 Bom 408 above cited, the said decree was made with the present plaintiff on record as a proper party--may be in the category of a 'pro forma' defendant--who had the right to be heard if he so desired. Clearly also, that decree was based on a finding plainly destructive of the plaintiff's present claim. In such circumstances, it is, in my opinion, idle to contend that to the present suit the bar of 'res judicata' will not apply. I would, therefore, uphold the defence plea of 'res judicata' and dismiss the plaintiff's suit. But for this finding a remand would have been plainly necessary. As matters stand, however, the suit must fail on the defence of 'res judicata'. Thisappeal must, therefore, succeed and the plaintiff's suit must be dismissed straightway.

20. In the result, therefore, this appeal isallowed. The judgment and decree of the courtof appeal below are set aside and the decreeof dismissal passed by the trial Court is restored. The parties, in the circumstances of thiscase, will bear their own costs throughout.


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