A.A. Halbe, J.
1. In an unusual appeal seeking only remand of the Suit No. 240 of 1985, the appellant-plaintiffs who have lost in both the Courts below, have very vehemently contended that both the Courts below committed virtually a blunder in deciding the suit and the appeal only on the preliminary questions of res-judicata and limitation. It has been contended by the learned Advocate for the appellants that the approach by both the Courts below should be termed as perfunctory approach without any indepth enquiry into the allegations made by the appellants-plaintiffs in the suit as well as in the appeal. Both the Courts below miserably failed to comprehend the concept of res-judicata as has been envisaged in section 11 of the Civil Procedure Code and also failed to reckon on the question of limitation, in its correct perspective. Had the Courts below gond through the number of documents produced on record appropriately, the Courts would have certainly not come to the conclusion that the suit was barred both by res-judicata and limitation. This is indeed challenged by the learned advocate for the respondents and it is contended that the approach by both the Courts below is fully warranted in view of the previous suit of 1950filed by defendant No. 1 against the father of plaintiff No. 1 and the grand-father of plaintiffs 3 to 6, relating to the same subject matter which clearly barred the present Suit No. 248 of 195 both on the point of res-judicata and limitation. The inter party rights were concluded once and for all. On the question of limitation it is submitted that even if the limitation is construed from the suit of 1950 or from the period commencing on the death of the father of plaintiff No. 1 the suit has been obviously barred by limitation and the observations of both the Courts below in that behalf are absolutely correct and the decisions of both the Courts below need not be tinkered with in this second appeal which accordingly should be dismissed.
2. In order to appreciate these rival contentions it may not be out of place to traverse through the pleadings both in the plaint and the written statement. The plaintiffs Nos. 1 to 6 derived their existence through the original owner Faiz Mohammad son of Ilahi Baksha. Plaintiff No. 1 is the son of Faiz Mohammad whereas plaintiffs Nos. 2 to 5 are the children of Mukhtyar Ahmed, who was also the son of Faiz Mohammad. Faiz Mohammad Ilahi Baksha died in the year 1971 and left behind widow Jannatbai defendant No. 1, son Lal Mohammad defendant No. 2, and plaintiff Mohammad Yousuf. It seems that the third son who was elder to plaintiff No. 1 Mukhtyar Ahmed also died in 1971. Plaintiff No. 2 is the widow of Mukhatyar Ahmed where as plaintiffs Nos. 3 to 6 are the sons and daughters of the said Mukhatyar Ahmed. The late Faiz Mohammad owned the suit house bearing Municipal No. 2302/2303 situated at Baidpur, Sadar Bazzar, Jalna having the boundaries mentioned in the plaint to which reference is not necessary. Sometime in the year 1950 Faiz Mohammad had to satisfy a money decree of a stranger and the plaintiff's allegation is that in order to save the above suit property Faiz Mohammad executed a 'Mehar-Deed' in favour of his wife-defendant No. 1 and further executed an agreement and affirmed the gift. In order to save the suit house from attachment under decree Faiz Mohammad got filed a Suit No. 210/1 of 1950 by his wife defendant No. 1. Since that was a collusive proceeding the said proceeding ended in a decree. The plaintiffs refer that decree as on admission or a consent decree. It is also pointed out that before the decision in that suit, on 7-7-1950 defendant No. 1 executed an agreement in favour of her husband Faiz Mohammad acknowledging him to be the full owner of the suit property. It is alleged by the plaintiffs that this circumstances would clearly show that the above suit was in merely a farce to prevent the property from being attached and sold in execution of the decree. However, Faiz Mohammad continued to live in this house up to his death in 1971. His sons and daughters-in-law also continued to stay in the house. Plaintiff No. 1 had a share of 4 Annas and 8 Paise whereas defendant No. 1 had only share of 2 Annas in the suit property. The other defendants had collectively share of 4 Annas and 8 Paise in the suit property. Plaintiffs have been paying tax from time to time meaning thereby that they were the shares as well as the persons in possession of the suit property. However, since March, 1985 it is alleged that, defendant No. 1 Jannatbai started claiming exclusive ownership over the suit property and by a deed of gift executed in the year 1985 in favour of defendant No. 2 the defendants started claiming ownership over the suit house to the exclusion of the ownership of the plaintiffs. The plaintiffs, therefore, filed the suit inter alia praying for partition and possession of the suit house then bearing No. 1174/1146 (Original No. 2302/2303), Plot No. 1-20-21, City Survey No. 913 situated at Jalna and for declaration that the gift-deed bearing Registration No. 647/1985 executed by defendant No. 1 in favour of defendant No. 2 on 4-3-1985 was null and void and not binding on the plaintiffs and further for perpetual injunctions restraining defendant No. 1 mutuate to the above property in the name of defendant No. 2 as owner in the records of the municipality and the city survey.
3. This was resisted by the defendants in their written statement at Exhibit-17. The defendants admitted the genealogy referred in the plaint but they contested the claim of the plaintiffs that the suit property was given in Mehar to defendant No. 1 by Faiz Mohammad in order to save the same being sold in execution of the decree. On the other hand, it was contended that Faiz Mohammad has gifted the suit house orally at the time of his marriage with defendant No. 1 sometime in the year 1946-47 and then confirmed the same by the Deed of Mehar on the basis of which the above suit of 1950 was filed. The said suit was decreed in favour of defendant No. 1 Jannatbi in view of admission of Faiz Mohammad that he had given it in Mehar to defendant No. 1. It is denied that the said decree was a collusive decree. In pursuance of the decree the suit property was mutuated in the name of defendant No. 1 both in the Municipal as well as city survey records. Defendant No. 1 was thus in exclusive possession of the suit property and she all along paid the taxes of the suit property. The city survey authorities allotted Sheet No. 31 and C.T.S. No. 913 to the suit property. In view of the gift Faiz Mohammad and the present plaintiffs claiming through him, had no right whatsoever in the suit house and defendant No. 1 was the sole owner of the same. It is denied that it was a Matruka property of Faiz Mohammad and accordingly the plaintiffs had no right in the suit property. It was in the nature of dower-gift in favour of defendant No. 1. It is further contended that defendant Nos. 2 to 6 had left for Jaipur alongwith Mukhtyar Ahmed and that plaintiff No. 1 has been residing in the rented house which is disclosed in the electoral roll which is put on record. However, the plaintiff No. 1 is occupying a small room admeasuring 7' x 6' as a tenant for running bangle shop in the suit premises. The other rooms are in possession of Tailor-Tarke and that in the eviction proceedings the decree was passed in favour of defendant No. 1 as the landlord of the property. It is further admitted that a money decree was passed against Faiz Mohammad but the property attached in execution bore the Municipal No. 2075/2076 old. It is further stated that during the mutation proceeding in the municipality for mutation in favour of defendant No. 1, Mukhtyar had acknowledged the ownership and possession of defendant No. 1 over the suit property and the mutation entry to that effect is placed on record. Since the date of gift defendant No. 1 has been in exclusive possession of the suit property and the claim of the plaintiffs is barred by limitation. Further, on account of the suit of 1950 the claim of the plaintiffs is hit by principles of res-judicata. It must also be pointed out that the allegations of the plaintiffs that defendant No. 1 executed an agreement dated 7-7-1950 about waiver of her Mehar in favour of Faiz Mohammad has also been denied by defendant No. 1. It is further contended by the defendants that Mukhtyar Ahmed died on 5-4-1971 during the life time of Faiz Mohammad, the question of plaintiffs 2 to 6 claiming any share does not at all arise since they have no representation in the property of Faiz Mohammad who died on 9-4-1971. On these grounds the defendants prayed for the dismissal of the suit.
4. It seems that defendants filed an application Exhibit-31 for raising two preliminary issues namely issue of res-judicata and issue of limitation. The plaintiffs filed their say at Exhibit-37 objecting to the prayer but the Court left that both the issues should be tried as preliminary issues alongwith the prayer for ad-interim injunction and accordingly dismissed the suit which order was confirmed in appeal.
5. The learned trial Judge found that the suit was barred by the principles of res-judicata because in the suit of 1950 the subject matter in dispute was the same which is now the subject matter of the present suit. The Court refused to recognise the compromise decree as one exempted from the operation of section 11 of the Civil Procedure Code. On the other hand the Court held that it is a decree invitum. On the point of limitation, the Court held that the claim was barred under Article 65 because Faiz Mohammad died in 1971 whereas the present suit has been filed in 1985. The learned Appellate Judge also held that the suit was barred by res-judicata in view of the former suit R.C.S. No. 210 of 1950. On the question of limitation the Appellate Judge observed that the defendants have been in possession of the suit property since 1950, that Faiz Mohammad died in 1971 and that the limitation started from the death of Faiz Mohammad. On the question of occupation of one room by plaintiff No. 1, the Court observed that, that occupation was not sufficient to indicate that plaintiff No. 1 was in possession of that room as co-owner. In keeping with these findings the Appellate Judge was also pleased to dismiss the suit.
6. Being aggrieved by these orders of dismissal, both by the trial Court and the Appellate Court, the appellants-plaintiffs have preferred this second appeal. The learned advocate for the plaintiff has emphatically urged that this is a fit case for remand. He has contended that the decree of 1950 is a compromise decree or alternatively it can be designated as a consent decree but the import of both these decrees is same and that compromise decrees are not subject to section 11 of Civil Procedure Code. On the point of limitation he has contended that the plaintiffs are the tenants-in-common in respect of the suit property alongwith the defendants, that they are in possession of the suit property and that is indicated by occupation of plaintiff No. 1 in one of the room of the suit property and hence the question of limitation does not at all arise. It is only after the gift-deed of 1985 that the defendants started actions inconsistent with the ownership of the plaintiffs over the suit property.
7. The only question which arises for determination at this stage is 'whether this is a fit case for remand'.
8. In the first instance it will have to be ascertained as to whether the decree in Suit No. 210 of 1950 is a compromise decree or a consent decree not governed by section 11 of the Civil Procedure Code. Now, in that regard it may be necessary to scan the plaint, the written statement and the decree which are to be found at D-49, D-51 and D-53 which is a consent decree. D-93 and D-95 on record are the deposition of two witnesses recorded by the Court in the above suit. The learned advocate for the defendants/respondents has urged that the fact that the evidence of two witnesses was recorded is eloquent enough to hold that this is a decree based on contest and not on compromise, consent or admission. As against this the learned Advocate for the appellant-plaintiffs has contended that merely because the evidence of the witnesses was recorded it cannot be concluded that the decree is based on contest. The evidence of two witnesses is more or less reaffirmation of what has been stated in the plaint and in the written statement.
9. Before going through the plaint and the written statement of the above suit, it is necessary to state the salient ingredients of section 11 so as to find out as to whether the contentions raised by the learned advocate for the appellants carries some substance. Section 11 provides that no Court shall try any suit or issue in which the matter directly and substantially in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. There are about 7, 8 explanations annexed to this section to which the reference at this stage is not necessary. Now, what is salient in this section 11 is that the issue in a former suit must be substantially the same issue in the subsequent suit. It is undoubtedly a fact that the suit of 1950 is prior in point of time to the present suit. It also does not appear to be in dispute that the parties are litigating under the same title, plaintiffs claim to be shares in the suit property through Faiz Mohammad whereas defendant lay their claim to the suit property under the Mehar-deed of 1950. The same Mehar-deed is challenged but all the same the nature of the claim at this stage remain identical and same. What section 11 requires is that if the parties litigating under the same title in the former suit have contested the former suit on a particular issue and the said issue is determined after having been heard and finally decided by the Court, the parties cannot agitate the same issue in the subsequent suit on account of the bar created under the principles of res-judicata enunciated in section 11 of the Civil Procedure Code.
10. In the plaint at D-49 in R.C.S. No. 210/1950 dated 22nd June, 1950 it is contended that the suit house was owned and possessed by plaintiff Jannatbi (now defendant No. 1) and the same was given to her at the time of her marriage as Dower-gift by her husband-defendant Faiz Mohammad. It is also stated that defendant Faiz Mohammad executed an agreement in writing dated 26 Ardibehasht, 1357 Fasli confirming the Mehar given at time of his marriage. The further allegation was that on the instigation of the sons of Faiz Mohammad, Faiz Mohammad has been obstructing the peaceful possession of the plaintiff and that he desired to take back the agreement so as to destroy the proof of gift in her favour. The plaintiff was, therefore, constrained to file the suit against the defendant for permanent injunction restraining Faiz Mohammad from entering the suit house.
11. In the written statement at D-51, Faiz Mohammad virtually admitted the whole claim of Jannatbi by admitting in unequivocal terms that he had donated the suit house as Mehar to the plaintiff-wife at the time of his marriage, that his sons often picked up quarrels with the plaintiff, that he had executed the writing affirming the previous Dower-Gift and that nobody else had claim over the suit house. He submitted that the suit should be decreed in terms of the claim laid by the plaintiff.
12. So far as the written statement at D-51 is concerned, it has not been disputed by the learned advocate for the respondents-defendants in this appeal, that this is wholesale admission by defendant in favour of Jannatbi. It cannot be thus disputed that this is complete admission of the claim pleaded by the plaintiff and this is more highlighted by the last sentence of the written statement that 'the suit of plaintiff may be decreed without costs and that defendant has no objection obviously if the decree is passed.' At this stage, therefore, it will have to be stated that by virtue of this written statement Faiz Mohammad did not contest any of the claims canvassed on behalf of the plaintiff-Jannatbi in that suit. It has, therefore, been contended by the learned advocate for the appellants that whatever has been done thereafter cannot be said to have been done under the pretext of contest by the defendants and that cannot be because Faiz Mohammad had admitted the claim of the plaintiff in respect of the dower-gift in favour of Jannatbi. Of course he has disputed that the admissibility of that deed on account of the infirmities arising out of want of registration. To that aspect I shall come later. Suffice it to say at this stage, that this is a written statement which is an unambiguous admission by Faiz Mohammad about the suit claim of defendant No. 1 (plaintiff in the former suit.).
13. However, the learned advocate for the respondents has urged that the situation is not as simple as it is being canvassed on behalf of the appellants-plaintiffs. Inspite of the written statement filed on 26-8-1950 by Faiz Mohammad, the Court did not pass the decree immediately. The Court passed the decree after two days i.e. on 28-8-1950. The gap of two days should impress upon this Court that it was not a simple decree on admission or a compromise decree or a consent decree. The Court did not take both the plaint and written statement at their face value. The Court left that some more investigation was necessary and that is why the non-attraction of section 11 C.P. Code pleaded by the appellants will have to be disregarded and it will have to be held that this is a decree not on admission or consent decree but a decree invitum which is subject to the provisions of section 11 C.P. Code.
14. In that regard he has pointed out the evidence of two witnesses at D-93 and D-94. D-93 is the deposition of one Kamruddin Madar Baksh who has been examined as the plaintiff's witness No. 1. He has stated that Jannatbi was the wife of Faiz Mohammad, that the brother of Faiz Mohammad had brought about this marriage under an agreement and that at that time the suit house was agreed to be given in Mehar by Faiz Mohammad to Jannatbi. Kamruddin has further stated that the written agreement to this effect was recorded after 21/2 years of the marriage; after some-time possibly when the money transactions had to be effected with one Lal Mohammad, Lal Mohammad told Faiz Mohammad to obtain the signature of defendant No. 1 on the same-deed but Kamruddin has stated in that behalf that Jannatbi refused to sign any document. On that, faiz Mohammad got angry and slapped, but all the same he did not succeed in obtaining the signature of Jannatbi. Kamruddin has also identified the signature of an attesting witness of the deed. It seems that this witness was cross-examined and he stated that Faiz Mohammad not only signed but also put his thumb impression on the agreement of gift and the said agreement was executed in the shop of defendant. On the Court question this witness stated that the marriage between Jannatbi and Faiz Mohammad had taken place six years before and that Kamruddin was present at the time of the marriage.
15. The other witness Fakirchand Bharoji has also stated that he was the neighbours of Faiz Mohammad and that Jannatbi did not observe parda with Fakirchand. Faiz Mohammad wanted to mortgage the house to Lal Mohammad and insisted on the signature of defendant No. 1 as the said house stood in her name, Jannatbi told him that she should ask her brother and thereupon Faiz Mohammad tried to snatch keys and asked her to get out. However, therefore, Faiz Mohammad was pacified. In the cross-examination he has stated that the people had collected when the quarrel took place in between the husband and wife. He has stated that the marriage took place at Indore and that the suit house was given under a writing. Lastly he has stated that Faiz Mohammad was telling Jannatbi to mortgage the house to Lal Mohammad.
16. From the evidence of these two witnesses it would be manifestly clear that so far as the main claim of plaintiff Jannatbi is concerned these witnesses have not challenged any of the facts averred either in the plaint or in the written statement. It seems that the purpose behind examining these two witnesses is to reaffirm the fact of marriage, the fact of Mehar and the fact of agreement in writing by Faiz Mohammad in favour of defendant No. 1. Jannatbi. Some questions have been put about the quarrels and that seems to be possibly because there is an allegation by the plaintiff (now defendant No. 1) that Faiz Mohammad was trying to harass her and rather trying to compel her to sign on a document of mortgage in favour of Lal Mohammad. Now going through the plaint D-49 the Court has observed that since the statement of parties in the pleadings was not verified the plaintiff was required to produce the proof and accordingly the witnesses were examined and the Court observed in following words :
'Consent statement filed by defendant which has not been verified and hence the two witnesses were called.'
And it concluded 'hence it is ordered that as per claims of plaintiff the suit was decreed.'
The decree is to be found at D-53 wherein there is also an observation that the defendant has filed a consent statement.
17. Now going back to the plaint, written statement and the decree it would be manifestly clear that on account of the written statement admitting the claim of the plaintiff Jannatbi there was no question of trying any issue. The learned advocate for the respondents has contended that looking to the fact that the two witnesses have been examined to affirm the averments of the plaint and the written statement, the Court must have thought about deciding the issue 'whether the plaintiff proves that the suit property was given in lieu of dower at the time of marriage'.
18. Now, so far as the issue are concerned, under Order 14 of Civil Procedure Code it is clearly mentioned that the issues arise on the pleadings of the parties. Issues arise when a material fact is affirmed by one party and denied by the other party. Under section 11 of the C.P. Code what is required to be decided is the issue and the matter contained therein and the word 'issue' shall have to be assigned the same meaning throughout C.P.C. and if that be so, by no stetch of imagination it can be said that the Court was required to frame an issue or even take it as an implied issue within the knowledge of the parties. Any arguments in this behalf shall have to be discarded because there will be a clearly breach of the definition of issue envisaged under Order 14. Now, so far as the pleadings of the parties are concerned, it will have to be stated that the plaintiff claimed the ownership over the suit property on the basis of Mehar given by her husband and the husband affirmed the same in the written statement. There was therefore, no controversy in the pleadings both in the plaint and the written statement. Faiz Mohammad virtually had given the complete surrender in favour of the plaintiff. There was therefore, no question of framing any issue on any controvertial question. Obviously no decision was called for on any matter. There was no dispute whatsoever between the parties. The evidence of the witnesses was only to affirm the truth of what was contended in the plaint and the written statement. As indicated above, both the witnesses have merely stated that the marriage took place some time in the year 1947; that Faiz Mohammad executed a writing in favour of defendant No. 1 Jannatbi in regard to the dower-gift. No dispute could be imagined nor could be construed under the spell of any of the pleadings. The Court took upon itself the task of recording evidence only to ensure that what pleaded between the parties or what was admitted by the parties was not tainted or motivated and the parties were not ignorant of what they were pleading. It can be, therefore, construed as verification of that allegation in the plaint and the admission in the written statement. The Court had no business to travel beyond the pleadings. The Court could not frame any issue when the pleadings did not at all warrant. There cannot be any pleading between the Court and parties. The pleadings can only be between the plaintiff and defendant and unless the parties are at variance the question of framing issues would not arise. It is rightly contended by the Advocate for the appellants-plaintiffs that this was nothing but a consent decree or a decree on admission or a compromise decree.
19. Under section 11 C.P. Code, the decision in the former suit must have been one on the merits. The matter must have been heard and finally decided and the decision must be passed on contest and not on consent. This view has been reaffirmed by series of decisions of the Courts. In A.I.R. 1956 Hyd 178 in the case of Parasuram v. Pandu and others, the Court observed that 'section 11 C.P.C. which deals with res-judicata envisages a matter having been heard and finally decided by a Court and, therefore, that section cannot be said to apply to a consent decree. No doubt it may raise a question of estoppel.' To the question of estoppel I shall come later on while dealing with conduct exhibited by the parties subsequent to the decree right up to the death of Faiz Mohammad. In A.I.R. 1961 All 226 in the case of Biram Prakash Chela M. Purandas and others v. Narendra Das and others, the Court has reaffirmed the same proposition by stating that 'compromise decrees are not the decrees passed on issues which have been heard and finally decided by the Court.' Even when the terms of a compromise merely are that the suit be dismissed it is a dismissal on agreement and not on merits.' In : [1964]2SCR310 in the case of Pulavarthi Venkata Subba Rao and others v. Valluri Jagannadha Rao (Deceased) by his heirs and legal representatives and others, the Supreme Court has laid down the following ratio which has been followed in the subsequent decision. The ratio can be worded as under :
'A compromise decree is not a decision by the Court, it is the acceptance by the Court of something to which the parties had agreed. It has been said that a compromise decree merely sets the seal of the Court on the agreement of the parties. The Court did not decide, anything. Nor can it be said that the decision of the Court was implicit in it.'
Such a decree, therefore, cannot be regarded as a decision on a matter which was heard and finally decided and cannot operate as res-judicata. There is an observation of this fact in : [1970]1SCR435 in the case of Baldevdas Shivlal and another v. Filmistan Distributors (India) Pvt. Ltd.. 'A consent decree according to the decisions of this Court does not operate as res-judicata because a consent decree is merely the record of contract between the parties to a suit, to which is superadded the seal of the Court. A matter in contest in a suit may operate as res-judicata only if there is an adjudication by the Court; the terms of section 11 of the Code leave no scope for a contrary view.' This Court in 1975 Mah.L.J. 345 in the case of Hayatuddin Haji Shujauddin v. Abdul Gani Abdul Hafiz and others, has been pleased to observe that 'if no finding is given on issue in the previous suit that judgment cannot operate as res-judicata on the ground that the finding must be assumed to have been given as an interference.' As indicated above, the compromise decree or the consent decree does not come within the purview of section 11 C.P. Code.
20. Incidentally the learned advocate for the respondent has drawn my attention to Explanation-III to the section 11 C.P.C. and he has contended that although the decree may be passed on consent still it relates to a matter in issue. Explanation III reads as follows:-
EXPLANATION III
'The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.'
He has contended that even when the matter is admitted by the party it is a matter referable to section 11. However, this argument ignores the aspect of section 11 which emphasizes that it is a suit or an issue in the suit which is relevant for consideration under section 11. The matter must be directly and substantially in issue and if that be so Explanation-III is not attracted. Apart from that the dicta indicated above in the foregoing authorities clearly shows that section 11 C.P.C. is not attracted in case of compromise or consent decree.
21. In this case both the Courts below have treated this decree as a decree invitum and that is why the Courts were persuaded to hold that the present suit was barred by res-judicata. In the brief reasoning given by both the Courts below it is manifest that they did not examine the pleadings between the parties and the relevant law in that behalf. The trial Court was wrongly obsessed by the fact that some evidence was recorded and the Court required satisfaction on all the averment. The said decree according to the Courts below was not a compromise decree or a consent decree. Even at the cost of repetition it will have to be stated that the pleadings of the parties nowhere indicated that there was any contest or even an iota of contest between the parties about the nature of Mehar transaction. There was no variance on that count. The transaction of dower-gift by Faiz Mohammad in favour of Jannatbi was affirmed in the evidence of two witnesses. The Court by way of abundant precaution examined the witnesses to verify the truth of averments in the plaint. The satisfaction of the Court cannot be a ground to show that the issues were raised by the Court. The crux of section 11 C.P.C. is that the issue is finally heard and decided. Both the Courts were beguiled by the circumstance of examination of witnesses and both the Courts fell in clear error in treating the decree as a decree invitum or a decree on contest. They missed the real import of section 11 C.P.C. and misconstrued the concept of res-judicata. The Courts below should have investigation this aspect in far more details.
22. Before parting with the issue of res-judicata it is necessary to refer to the rulings cited by the learned advocate for the respondent-defendant. He has drawn my attention to : (1978)IILLJ161SC in the case of The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin and another. In that case the Supreme Court was pleased to observe that 'when the matter is disposed off in limine by the High Court it cannot be said that the High Court has decided all the issues on merits.' It is observed that 'it is not safe to extend the principles of res-judicata to such an extent so as to found it on mere guesswork.' Relying on these observations he has contended that in this case the matter has been decided on merits and at this stage it may not be proper to reopen the issue. However, this ratio may not be necessarily applicable to this case because of the detailed discussion about the circumstances in which the said decree was passed in the year 1950. It is prima-facie pointed out that the said decree was never intended to be acted upon, that the subsequent conduct of the parties was incompatible with the terms of the decree. He has also drawn my attention to 1982 ML.J. 268 in the case of Keshav Patloba Gite and others v. Ram Apparao Gite and another. In that behalf it is pointed that the Court could not consider the case merely on title but also the pleadings in the plaint and the written statement. This view may not be relevant at this stage since the matter is decided to be remanded on all counts. He has also drawn my attention to 1986 ML.J. 983, in the case of Prabhulal Chhanganlal Kothari v. Chandrakant S. Doshi. That was the matter under the Bombay Rent Act and the learned Judge has observed that 'the consent cannot operate as res-judicata because under Rent Act what is prohibited is contracting out to the detriment of the purpose of the Act'. In the present set of facts what is being challenged is the consent decree wherein there is no pleading that defendant No. 1 is a Pardanashin lady, that the transactions were entered into contrary to the principles of Mohammadan Law and that this is a case of contracting out. Hence, this view is not applicable in the present case.
23. The learned advocate for the appellants has drawn my attention to the various documents showing that the conduct of the parties even do not warrant an inference that there was any truth behind the averments in the plaint as well as the written statement. The conduct between the husband and wife was such that at no point of time the title of Jannatbi was recognised by father Faiz Mohammad or even for that purpose by his sons. In that regard he has drawn my attention to deed of surrender of dower-gift dated 7-7-1950 at D-46. The learned advocate for the respondents has challenged this deed, firstly on the ground that the said deed is not admitted by defendants and secondly that even if it is taken to be true, it could not have been executed at a time when the suit R.C.S. No. 210/50 was pending. The original suit was filed in the month of June, 1950, the same was decided in favour of Jannatbi in the month of August, 1950. It was therefore, unlikely that Jannatbi after having filed the suit would have passed a deed of reconveyance. She was asserting her rights against her husband as well as her sons who were trying to dispossess her and in that light of the matter the so-called document is nothing but a fabricated and got-up document. It may be necessary to examine the dates on which the suit was filed and the suit was decided. As stated above the plaint was filed on 22-6-1950 and the written statement was filed on 26th July, 1950 whereas the so-called surrender deed is dated 7-7-1950. The decree was passed on 26-8-1950. The learned advocate for the respondents/defendants has urged that such a situation cannot be comprehended because the plaintiff had challenged the right of Faiz Mohammad to disturb her possession. The learned advocate for the appellants has urged that since this was to be a collusive suit and since Faiz Mohammad wanted that his claim over the suit property should be protected, he possibly prevailed upon his wife to execute a deed of reconveyance before he could file written statement. The deed of reconveyance clearly shows that Jannatbi recognised the right of Faiz Mohammad on the suit property which was numbered as 2302 and 2303. After having secured such a writing he filed a nominal written statement admitting the claim of his wife. All these transactions, all these pleadings were by way of a show to save the property from attachment and sale in the execution of the money decree which was passed against Faiz Mohammad. Existence of money decree against Faiz Mohammad is not in dispute.
24. The learned Advocate for the respondents has contended that there is nothing to show that money decree was passed at this time and that this property was sought to be attached but later on some other property was attached. In the written statement filed by the defendant it is clearly stated that property Nos. 2075 and 2076 belonging to Faiz Mohammad was attached in the money decree. The fact remains that some money claim was pending and there might have been an attempt on the part of Faiz Mohammad to save the suit property. It is rightly contended that this aspect also needed examination at the hands of the Courts below and I do find substance in this argument inasmuch as a deed of reconveyance or alternatively a deed of surrender or a deed of relinquishment is said to have been executed by Jannatbi. The authority, the legality and genuineness of document should have been a subject matter of investigation by the Courts below but nothing of the sort seems to have been done.
25. The learned advocate for the appellants plaintiffs has also taken me through various documents to show that the so-called suit property was never effectively belonging to Jannatbi. Whereas, an equally forcible attempt has been made by the learned advocate for the respondents-defendants to show that not only the mutation but a Sanad was issued in favour of Jannatbi. At D-46 which is an extract of municipal record, the suit property bearing No. 2302 former 2211 was originally belonging to one Abdul Raheman and then purchased by Faiz Mohammad, that was sometime in the year 1938. Thereafter in the year 1942 this property came to be mutated in the name of Faiz Mohammad vide D-67. Even after the year 1950 the suit property comprising of two numbers 2101 and 2102 corresponding to 1146 and 1147 was in the name of Faiz Mohammad. He has urged that if in fact the gift was made in the year 1946 there was no reason for this property being shown in the name of Faiz Mohammad as late as in 1950. Vide D-70 the name of defendant No. 1 Jannatbi is mutated after deleting the name of Faiz Mohammad, in 1958-59. This entry seems to have been effected on 9-9-1957. For the year 1974 also the said property was in the name of Jannatbi and the numbers were 1174 corresponding to 1146. My attention is also drawn to Sanad D-86 in favour of Jannatbi. The property number is City Survey No. 913, Sheet No. 31. It is not in dispute that this is the same property which is a subject matter of dispute in this suit. This Sanad is issued to show the ownership of Jannatbi. Of course, the date is not given but presumably the same was issued when the city survey was introduced in this part of the State.
26. Incidentally, the learned Advocate for the respondent has also drawn my attention to D-77-the decree in Rent Appeal No. 36 of 1981 filed by Jannatbi against Tailor Tarke. This document is indeed sought to be relied upon to establish that as late in 1981 Defendant No. 1 claimed herself to be the owner of the suit property. There is also an agreement or rent note at D-79 between Defendant No. 1 and one Kumari Vijya Jainarayan Bhutada. The same is for the period commencing from 1-3-1982. Surprisingly enough now at D-149 there is a sale-deed dated 12-3-1959 in relation to suit property No. 1147 corresponding to 1174 in the former revision and No. 2102 and 2212 in the previous revision. The learned advocate for the appellants has taken me through the contents of that sale-deed and it is very pertinent to note that it is a sale transaction by Faiz Mohammad and his sons Mukhtyar Ahmed, Mohammad Yusuf and Lal Mohammad who was then minor for whom defendant Jannatbi acted as guardian in favour of Gulabchand Ghisulal Marwadi. The learned advocate for the appellants has rightly suggested that had Jannatbi been the real owner of the suit property the sale-deed should have been by her. On the contrary she does not fare even as one of the vendors. If the fact of Mehar was a truth what was expected was that this sale-deed should have been executed by Jannatbi. The learned Advocate for the respondents has tried to explain that there was a peculiar situation and it may be that the vendee may have insisted on all joining the sale-deed by way of abundant precaution. Even if this argument is accepted, one fails to understand as to why Jannatbai could not be one of the vendors. She describes herself as a guardian of defendant No. 2 Lal Mohammad who was minor. She does not sell anything in her right and hence patently the story of her ownership stands defeated in this deed. Not only that while describing the boundaries of this property, the remaining property which is said to have been covered by Mehar deed is also shown to be belonging to Faiz Mohammad and others. The explanation offered by the learned advocate for the respondents cannot be accepted even for a moment. The averments in this deed clearly show that the story that there was a Mehar Gift or a dowry-gift appears to be prima-facie not tenable. This document was not looked into by the Courts below.
27. Similarly, in the rent note D-152 dated 19-5-1959 Faiz Mohammad has described himself as owner of this property and it was let out to tailor Pandharinath Ranganath Tarake. To this also no explanation in coming forth by the defendants. Both the deeds at D-149 and D-152 appear to be prima-facie incompatible with the title of Jannatbi over the suit property.
28. It is indeed a fact that there is mutation in favour of Jannatbi and these documents are to be found at D-81. This is an application by Jannatbi dated 6-8-1969 to the Chief Officer, Jalna Municipal Council. As per this application, Jannatbi desired the mutation of the suit property is her name. There is also a similar application dated 1-10-1968 addressed to the President of Jalna Municipal Council. There is a query made by the said Council by the letter dated 22-11-1968 from Jannatbi to support her claim by various documents. A public notice seems to have been given by letter D-84. vide letter D-85 dated 12-8-1969 the suit property is mutated in the name of Jannatbi, and as indicated above vide D-86 the Sanad is given in the name of Jannatbi. The learned advocate for the respondent relying on these documents has forcefully urged that these documents are enough to show that Jannatbi was the owner of the suit house. It cannot be last sight of that although these documents are on record there are equally important document tendered on record to show that after 1950 Jannatbi even did not mind, part of the suit property being alienated in favour of others. The execution of the Mehar-deed was thus virtually obliterated by the subsequent conduct disclosed by both Faiz Mohammad and Jannatbi. They have freely dealt with the property. Father and sons even sold the property and in view of these circumstances the Courts were supposed to scrutinise all these documents and to report a clear finding as to whom the property belonged.
29. The next limb of argument on behalf of the appellant is that the original deed of Mehar at D-46 cannot be considered for want of registration. He has also urged that when defendant No. 1 has attempted to alienate the suit property in favour of defendant No. 2 by the gift-deed of 1985, the same too could not have been done in view of the existing position of law. In that behalf he has drawn my attention to : AIR1960Pat147 in the case of Zabair Ahmed and another v. Jainandan Prasad Singh, the Court was pleased to observe that :
'The dower debt of Muhammadan widow is not, properly speaking, a charge upon the property of her husband, the interest which she has in the property in her possession in lieu of dower-debt is an interest restricted in its enjoyment to her personally within the meaning of section 6(d) of the Transfer of Property Act, and as such is not capable of alienation.'
This is a view which should also invite the attention of the trial Court while deciding the matter. Similarly in : [1978]111ITR475(Patna) in the case of The Commissioner of Income-Tax, Bihar, Patna v. Syed Siddique Imam and others, the Court was pleased to observe that 'Gift of a residential house by assessee Mohammadan husband in favour of his wife in lieu of dower is neither a hiba nor hiba-bil-awaz but amounts to 'sale' and has to be by a registered instrument as required by section 54 of Transfer of Property Act when the value of the house exceeds Rs. 100/-.' Relying on these observations he has drawn my attention to the peculiar wording used in the Mehar deed at Exhibit D-46. He has contended that the husband conferred upon defendant No. 1 the gift of the house to his wife in lieu Mehar. Mehar being antecedent to the gift and hence the deal evidencing past Mehar cannot be admitted in absence of registration as laid down by the Patan High Court. Similarly, in 1986 Mah.L.J. 183 in the case of Sk. Lal son of Abdul Karim v. Zahurbi wife of S.K. Mohamad and others, this Court has observed that 'alienating the suit house worth more than Rs. 100/- in lieu of Mehar (dower) debt as per Mehernama cannot be said to be a gift, it is in substance a sale which attracts the provisions of section 54 of the Transfer of Property Act.' It has therefore, to be by a registered instrument and in absence thereof the title of the property could not pass to the donor. The learned advocate for the appellant has urged that none of these aspects have been considered by the Courts below. As against this, the learned advocate for the respondents has drawn my attention to the observations of this Court in : AIR1948Bom114 in the case of Jaitunbi Fatrubhai v. Fatrubhai Kasambhai and others, wherein this Court observed that 'when the dower gift is conferred at the time of marriage it needs no registration.' In this case the house is said to have been conferred on defendant No. 1 at the time of marriage. It, therefore, amounts to a simple gift (Hiba), it is not a sale and hence the provisions of section 54 would not be attracted. Writing in that behalf would be protected under section 129 of the Transfer of Property Act which provides for exemption for a Mohammadan from the provisions of the said Act. On going through the wording used in this D-46 there are avernments which indicate that the house was bestowed upon defendant No. 1 by her husband at the time of her marriage which took place a few years before. This is therefore, a view which also needs consideration. Similarly, in A.I.R. 1952 Hyd 3 in the case of Mohd. Hashim v. Aminabi, the Court held that 'as the house was being given in lieu of Mehar the transaction was a simple gift and not a transfer made in consideration for the relinquishment of Mehar by the proposed bride.' Now, in this regard the guidelines can well be drawn from the observations of this Court in 1986 Mah.L.J. 183 in the case of Sk. Lal son of Abdul Karim v. Zahurbi wife of S.K. Mohamad and others, wherein the Court was pleased to observe that in the aforesaid tow cases the evidence regarding the nature of Mehar was available in the register relating to the marriage maintained by the Priest. In one of the cases it was clearly mentioned that although the Mehar amount was fixed, the marriage was celebrated with the donation of the house and that was equated with the amount of Mehar and the Court was pleased to observe that it was a simple gift. It would be thus obvious that even this Meharnama D-46 is capable of double interpretation. Under one interpretation it may not be admissible as being hit by section 54 of the Transfer of Property Act whereas, under the other interpretation it amounts to a simple gift. Without the oral evidence on this deed, it may be extremely difficult to adjudicate upon the nature of that document at this stage and it is for this purpose also that the remand is necessary. In : AIR1989Ker148 in the case of Imbichimdideenkutty v. Pathumunni Umma and others, it is observed by the Court that 'Hiba by itself does not attract registration under section 54 of Transfer of Property Act. However, if it is a gift for consideration and it is reduced in writing it attracts requirement under section 17 of the Registration Act, and therefore, it should be by registered document.' These are, therefore, the various views on the nature of transaction contained in D-46. The parties will have to show by evidence that this is either a simple gift or a gift for consideration.
30. It is also necessary to consider the arguments advanced by the learned advocate for the respondent that this is a gift which is antecedent to the document and need no registration. He has drawn my attention to : AIR1975AP271 in the case of Cheta Uddandu Sahib v. Masthan Bi (died) and others, wherein the Court observed that 'if the gift is antecedent and the deed is subsequent merely evidencing the past transaction, it does not require registration, because it does not by itself make or complete the gift.' The learned advocate for the respondent also drawn my attention to A.I.R. 1974 J. & K. 59 (Full Bench) in the case of Ghulam Ahmad Safi v. Mohd. Sidiq Dareel and others, wherein also the Court has observed that 'if however the making of the gift is antecedent act, and a deed is executed afterwards as evidencing the said transaction, that does not require registration as it is an instrument made after the gift is made and does not therefore, create, make or complete the gift thereby transferring the ownership of the property from the executing to the person in whose favour it is executed.' The learned advocate for the appellants relying on A.I.R. 1974 J. & K. 59 has also drawn my attention to the other relevant observations 'but if there is executed instrument and its execution is contemporaneous with the making of the gift then in that case the instrument must be registered as provided under section 17 of the Registration Act.' He has contended that the interpretation of the above deed in regard to its contemporaneous nature is a matter of evidence and in that regard he has contended that the deed of reconveyance dated 7-7-1950 has an important bearing in the interpretation of that deed. It can not be lost sight of that there is a provision for revocation of dower by wife and that is to be found at paragraph 291 of Mulla's Principles of Mohamedan Law which reads as follows :-
'291. Remission of dower by wife.---The wife may remit the dower or any part thereof in favour of the husband or his heirs. Such a remission is valid though made without consideration.'
The learned advocate for the appellant has contended that the deed of 7-7-1950 though made during the pendency of suit of 1950 shall have bearing on the transaction of Meharnama and that is again an aspect which needs serious consideration at the hands of the trial Court. The learned advocate for the respondent has indeed pointed out that when the gift of Mehar is conferred on the wife it cannot be challenged by any of the heirs. In that behalf he has drawn my attention to paragraph 167 of Mulla's Mohamedan Law. 'Right of revocation of gift'. According to him, under sub para 2, sub para (a) and sub para (3) and (4), it is laid down that when gift is made by the husband to his wife only the donor can revoke but none after his death, the right does not survive to the heirs. It is also stated that once the possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift. Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift. He has therefore, contended that since deceased has given the house in gift to defendant No. 1 the present plaintiffs who claimed to be the heirs of Faiz Mohammad cannot revoke that gift. This point shall have to be examined by the trial Court.
31. The next important question which has been agitated by the learned advocate for the appellant is that the question of limitation has been erroneously decided by the trial Court whereas the learned advocate for the respondent has contended that looking to the approach of the trial Court as well as the Appellant/Court on the point of limitation the same is wholly correct. Father Faiz Mohammad died in the year 1971. For more than 12 years no suit was brought by the plaintiffs and hence it is barred by Limitation. The trial Court in its judgment has stated that under Article 65 of the Limitation Act the limitation prescribed is 12 years and the starting point would be from the death of the original owner namely 'Faiz Mohammad, who died on 9th April, 1971 whereas the suit is filed in 1985 and hence the said suit is barred by limitation. The Appellant Court also relied on the same Article 65 for deciding the question of limitation. It has observed that the suit has not been filed within 12 years of the decree of 1950 or within 12 years even after the death of Faiz Mohammad. In that behalf the learned advocate for the appellants has contended that under the Mohammadan Law the heirs enjoy the property as tenants-in-common. They have right to possession over each and every inch of the property and unless the physical ouster, by the manifest intention, is brought on record the question of limitation cannot be considered at all. He has in that behalf drawn my attention to the important piece of evidence wherein it is to be found that plaintiff No. 1 is in occupation of one room, right till the date of the suit. This indeed has been denied by the learned advocate for the respondent. According to him this is a possession not as a co-sharer, co-owner or a tenant-in-common but it is more or less a possession of permissive nature. At one stage the plaintiff No. 1 is sought to be described as a tenant. However, the Courts have not found adequate evidence in that behalf but all the same the Courts have felt that the plaintiff No. 1 was in possession not as co-sharer. The notice at D-154, therefore, assumes importance. It is a notice given by defendant No. 1 to the tenant Tarake. There is a demand for possession of the premises from the tenant-Tarake on the ground that her eldest son desired to expend the business of bangles and that is why the possession was necessary. The learned advocate for the appellant has drawn my attention to the Gift-deed of 1985, D-5, wherein defendant No. 2 is shown as a Teacher and not a person doing business in bangle. However, there is evidence on record to show that plaintiff No 1 is doing business in bangles. The notice D-154 would therefore, show prima-facie that the claim for possession is for plaintiff No. 1 and obviously not for defendant No. 2. That would, therefore, make the intention of defendant No. 1 explicit on the point of ouster. The said notice rather shows that plaintiff No. 1 has been in possession of portion of the suit premises and that additional premises were necessary for plaintiff No. 1's bangle business. This would, therefore, totally obliterate the question of the intentional ouster of plaintiff No. 1 by defendants. The learned advocate for the appellant has contended that this document alone will defeat the story of limitation as has been canvassed on behalf of the respondents.
32. The learned advocate for the respondents has drawn my attention to : AIR1974Pat54 in the case of Ismail and others v. Idrish and others, wherein it is observed that 'where a deed of gift of certain lands contains a clear recital that the donor has divested all his interest in the gifted lands and put the dones in possession treating them as full-owner, the gift is valid and binding on the donor's heirs and the fact that subsequently one of the heris of the donor who is disputing the validity of the gift is found in possession of the gifted lands cannot detract from the completeness of the gift.' Relying on these observations he has contended that even if it is found that plaintiff No. 1 is in possession of a small portion of the suit premises that possession cannot stall the completeness of the gift, and the plaintiff No. 1 cannot now be heard to say that the limitation does not operate against him. He has also relied on 1982 M.L.J. 141 in the case of Firdose Mohamed Khan v. Siddique Begum Adbullakhan Khilji and others. It is laid down that 'under the principles of representation, the interest of each heir is separate and district and when one of the heirs files a suit for recovery of a share from the other heirs, who all hold the estate as tenant-in-common, then such a suit is governed by Article 65 of the Limitation Act. So far as immovable property is concerned the period is 12 years from the death of the deceased.' It is therefore, urged that Faiz Mohammad died in the year 1971 and the present suit is, therefore, clearly time-barred. In para 20 of that judgment the learned Judge observed that 'the heirs succeed to the estate as tenant-in-common in specified shares. When the heirs continue to hold the estate as tenant-in-common without dividing it and one of them subsequently brings a suit for recovery of his share, the period of limitation for the suit does not run against him from the date of the death of the deceased, but from the date of express ouster or denial of title.' These observations would be clearly applicable unless it was shown by credible evidence that plaintiff No. 1 was ousted from the enjoyment of the estate. Hence, from the above discussion it is clear that in absence of evidence of manifest ouster, the date of the death of Faiz Mohammad cannot be reckoned for the purpose of limitation in this matter. In : AIR1988Bom348 in the case of Joti Dadu Navale v. Manukabai Kashinath Mohite, it is observed that 'in absence of evidence of open assertion of hostile title, and in absence of a fact indicative of ouster, a period of 15 or 16 years of possession cannot be said to be indicative of ouster.' The learned advocate for the appellant has also relied on in the case of Mohinder Singh (deceased by L.Rs.) and others v. Kashmira Singh, wherein it is observed that 'when a suit for possession is brought on the basis of inherinatance, the heir is not required to bring the suit for possession unless there is a situation which may show that the claimant-heir is not in possession of the property inherited. In that event a suit for possession may have to be filed and on contest the same may fail on the defendant proving that he has perfected his title by adverse possession. It is such type of suit which is governed by the provisions of Article 65.' However, as indicated above the evidence, prima-facie does not show the ouster of the plaintiff No. 1 from the suit property.
33. From the foregoing discussion it will have to be held that both the Courts below went into the aspect of limitation without consideration of the available evidence, on record. It is, therefore, difficult to concur with the findings of both the Courts below that the suit is barred by limitation on the basis of the death of Faiz Mohammad or on the basis of the decree of 1950. It will have also to be considered as to in what manner decree of 1950 would govern the claim of plaintiffs or even the question of limitation. From the pleadings in the plaint this fact has been relied upon only for the purpose of showing that any alienation made during that time was in fact no alienation. The Meharnama followed by reconveyance and the decree of 1950 had symptoms of being a collusive decree. The allegation is that this was arrived at with a view to defeat the creditors. In that view of the matter it is felt that both the Courts below have arrived at a conclusion on the point of limitation as was as res-judicata without proper and adequate investigation. Hence, the appeal shall have to be allowed and the judgments of both the Courts below shall have to be set aside. It is however made clear that the observations in this judgment are made for furnishing guidelines to the trial Court about the multiple facets of the matter under litigation. No other points have been urged by the parties at the time of hearing of the appeal. Hence, the following order.
ORDER
The appeal is allowed. The judgments and decrees passed by both the Courts below are set aside. The suit is remanded to the trial Court for disposal according to law, on the guidelines indicated in this judgment. The trial Court shall consider the amendment applications filed by the appellants at Exhibit 29 and 31 on record. Since the suit is of 1985 the trial Court shall dispose of the suit within next six months from the date of receipt of the writ of this Court, under intimation to this Court.
It is made clear that the observations, above made, are by way of guidelines and should not influence the judgment of the trial Court.
Interim relief granted on Civil Application No. 1659 of 1988 in this second appeal shall continue to operate till the disposal of the suit.
In the circumstances of the case, there shall be no orders as to costs.