Judgment:
J.H. Bhatia, J.
1. These two Appeals arise out of the common Judgment delivered in Regular Civil Appeal No. 284 of 1999 and 289 of 199 respectively arising out of the Judgment in Regular Civil Suit No. 26 of 1993.
2. The following substantial questions of law arise in these two Appeals:
(i) Whether the first appellate Court was per se wrong in holding that the suit land Gat Nos. 300, 303 and 309 at Village Budh were exclusive properties of the defendant Nos. 5 to 8 and in allowing the Appeal No. 284 of 199 filed by the defendant Nos. 5 to 8 and setting aside the Judgment and decree passed by the trial Court in Regular Civil Suit No. 26 of 1993?
(ii) Whether the first appellate Court was wrong in allowing the Appeal No. 289 of 1999 filed by the original defendant No. 1 and setting aside the decree passed by the trial Court in Suit No. 26 of 1993 in respect of the suit house Nos. 139 and 47 situated at Vaduj on the ground that the judgment and finding in the earlier Appeal No. 304 of 1984 arising out of Regular Civil Suit No. 214 of 1975 operated as res judicata against the plaintiff/present appellant?
(iii) Whether the first appellate Court was wrong in reducing the share of the plaintiff/appellant from 1/3rd to 1/4th inspite of the fact that the defendant Nos. 3 and 4,being sister and mother respectively, had relinquished their shares by making statement in the Written Statement?
3. Heard the learned Counsel for the parties. Perused the impugned Judgments as well as the oral evidence and judgments in the earlier litigation.
4. To state in brief, the admitted facts are that Ahmad Mulani, Husen Mulani and Abdul Mulani were brothers inter-se. Regular Civil Suit No. 26 of 1993 was filed by the present appellant - Abubakar Husen Mulani against several persons. Defendant Nos. 1 and 2 are brothers of the plaintiff. Defendant No. 3 is his sister. Defendant No. 4 was their mother. Defendant Nos. 5 and 6 are sons of Ahmad Mulani. Defendant No. 7 was the widow and defendant No. 8 was daughter of Ahmad Mulani. He claimed partition and separate possession in the land Gat Nos. 38, 428 and 435 situated at Village Wakeshwar the lands Gat Nos. 295, 296, 300, 301, 303, 308 and 309 situated at Budh, the house property bearing Nos. 6/2 and 131 situate at Budh and houses bearing Nos. 139 and 147 at Village Vaduj. According to him, the property at Budh was previously held by their uncle Abdul Mulani, whol died issueless and, therefore, after his death, the property would go to the branches of his two brothers, viz. Husen and Ahmad. The plaintiff claimed 1/3rd share in the half share of Husein's branch in the suit property situated at Budh. He also claimed 1/3rd share in the half share of his father's property in the lands situated at Wakeshwar. He also claimed 1/3rd share in the house property situated at Vaduj.
5. Defendant Nos. 5 to 8 in the Written Statement contended that the lands as well as the house property at Budh were the absolute property of Ahmad and therefore they are exclusive owners of the same. According to them, they have already sold their half share in the suit land situated at Village Wakeshwar and therefore the plaintiff could not seek any partition and separate possession from that land.
6. Defendant No. 1 contended that his father had bequeathed his half share in the suit lands in Wakeshwar in his favour and therefore he has become owner of the same. According to him, the suit houses at Village Vaduj originally belonged to one Sakinai w/o. Yakub Mulani. She had gifted the said property in favour of defendant No. 1 on 19.5.1948 and accordingly he is in possession of the same as owner. He also contended that in Regular Civil Appeal No. 304 of 1984 arising out of Suit No. 214 of 1975 filed by the defendant Nos. 5, 6 and 8, it was held that the present defendant No. 1 had become owner of the said property by adverse possession. That finding has become final and therefore, it would operate as res judicata in the present litigation.
7. The trial Court held that the half share in the suit land situated at Wakeshwar belonged to defendant Nos. 5, 6 and 8 and they had disposed of the same. The plaintiff was entitled to 1/3rd share in the remaining half share. The trial Court also held that the land Gat Nos. 295, 296, 301 and 308 and the house property at Budh belonged to the defendant Nos. 5, 6 and 7. However, the plaintiff was granted 1/6th share i.e. 1/3rd of the half share in the land Gat Nos. 300, 303 and 309 of Budh. The trial Court rejected the contention of the defendant No. 1 that the suit is barred by res judicata in respect of the houses property at Vaduj and granted 1/3rd share to the plaintiff.
8. Defendant No. 1 preferred Regular Civil Appeal No. 289 of 1999 only in respect of the house property at Vaduj andquantum of share in the Wakeshwar property. Defendant Nos. 5 to 8 preferred Regular Civil Appeal No. 284 of 1999 only in respect of the land Gat Nos. 300,303 and 309 situate at Budh.
9. The appellate Court accepted the contention of the defendant No. 1 that In the Judgment in earlier Appeal No. 304 of 1984, it was held that the defendant No. 1 had become owner by adverse possession of the suit property at Vaduj and that finding operates as res judicata against the plaintiff in the present suit. Accordingly, the appeal filed by the defendant No. 1 was allowed in that respect. The appellate Court also found that some of the lands belonging to the defendant Nos. 5, 6 and 7 and their predecessor in title, viz. Ahmad were merged in Gat Nos. 300, 303 and 309 of Budh at the time of consolidation and therefore the plaintiff is not entitled to claim any share in that property. Accordingly, Appeal No. 284 of 1999 was also allowed. The appellate Court,while maintaining the right of the plaintiff to share in the land at Wakeshwar reduced the share from 1/3rd to 1/4th holding that the plaintiff, his two brothers i.e. defendant Nos. 1 and 2 and their sister and mother are also entitled to share in the property at Wakeshwar. The said findings are challenged in the present two Appeals.
10. Admittedly, the house Nos. 139 and 147 at Vaduj was given to Sakinabi wife of Yakub under a Settlement deed executed by one Bapu Rehman Mulani in the year 1922. Her husband had died during the lifetime of her fatherin- law. Under the settlement deed, she got life interest in the property and after her demise, the properties were to revert back to Ahmad and his brothers. Sakinabi died on 1.3.1961. The earlier Suit No. 214 of 1975 was filed by the present defendant Nos. 5, 6 and 7 for partition and separate possession to the extent of their half share in the agricultural land situate at Wakeshwar and the house property situate at Vaduj. Their contention was that Husen and Ahamad would be entitled to half share each in the said property after the death of Sakinabi and therefore defendant Nos. 5, 6 and 7 (the plaintiffs in that suit) claimed half share in the house property at Vaduj. The present appellant, who was defendant No. 3 and his brother Nurmahamad, who was defendant No. 2 in that suit and who is defendant No. 2 in Regular Civil Suit No. 26 of 1993, had filed a Pursis admitting the claim of the plaintiff in Suit No. 214 of 1975. Defendant No. 1 - Allabaksha, who is brother of the plaintiff, however, had taken a plea that in 1948, Sakinabi had executed a gift deed in his favour and since then he is in possession of the property. The gift deed was not a registered document. The trial Court decreed the suit rejecting the contention of the defendant No. 1 that he had become owner of the house property at Vaduj either by gift deed or by adverse possession as pleaded by him. The said defendant No. 1 - Allabaksha preferred Regular Civil Appeal No. 304 of 1984. In that appeal, the decree was maintained to the extent of the plaintiffs' half share over the suit lands at Wakeshwar. However, that appeal was allowed and the decree granting undivided half share to the said plaintiff in the suit house at Vaduj was set aside on the ground that defendant No. 1/appellant had become owner by adverse possession.
11. The appellate Court had raised certain points for determination. The point Nos. 1 and 3 with findings were as follows:
Points Findings:
(1) Is the suit claim within the It is barred by period of limitation vis-a-vis period of the claim of the plffs over the limitation suit houses?
(3) Does the deft No. 1 proves that Yes. He has become owner of the suit houses by an adverse possession?
Point Nos. 1 and 3 were inter-connected. Point No. 1 was whether the suit claim was within limitation over the suit houses vis-a-vis the claim of the plaintiffs and the point No. 3 was about the right of defendant No. 1 by adverse possession. The appellate Court observed in para 19 thus:
prima facie, the deft No. 1 to the exclusion of the plffs and the other defts was in possession of the suit houses from the year 1948 onwards. The deft Nos. 2 and 3 are also entitled to occupy the suit houses as a reversioner along with plff and the deft No. 1.In para 22, he concluded:Besides that gift-deed when it is in writing, it must be registered. However, as a piece of the circumstance, as a collateral transaction it has to be accepted that the deft No. 1's possession over the suit houses was from the year 1948 onwards. The claim based on the adverse possession is duly established by the deft No. 1.
He also observed that the suit claim vis-a-vis the relief from the suit houses was barred by the period of limitation. With this finding, the appellate Court set aside the decree in favour of the plaintiffs in that suit (defendant Nos. 5, 6 and 7 in the present litigation) in respect of the suit houses.
12. This Judgment was placed before the trial Court in Regular Civil Suit No. 26 of 1993. The trial Court observed thus:
it is admitted position on record that in R.C.S.No.214/1975 the plaintiff was given 1/3rd share in suit house of village Vaduj, along with the deft. No. 1 & 2. However, it is admitted position on record that the Appellate Court in R.C.A. No. 304/1984 has set aside the half share of the present Deft. Nos. 5 to 7 over the suit house of Vaduj and not set aside the share of present plaintiff and defendant No. 2 over the suit house by Judgment and decree dt. 11.1.1988.' The learned trial Court also noted that the house assessment extract of house No. 47 of village Vaduj was standing in the name of Husen for the year 1943-44 and that the defendant No. 1 had also admitted in the written statement that the defendant No. 2 -Nurmahamad was in possession of the suit house. The trial Court even further noted that the voters' lists of the years 1971, 1980 and 1988 revealed that defendant No. 2 Nurmahamad was residing in the suit house No. 139. In view of these circumstances, the trial Court came to conclusion that the defendant No. 1 had never become owner of the suit house at village Vaduj to the extent of the share of the plaintiff and defendant No. 2 by adverse possession. With these observations, the claim of the defendant N. 1 - Allabaksha was rejected by the trial Court.
13. However, the appellate Court in Regular Civil Appeal No. 284 of 1999 missed all these important facts and only because in the judgment in Regular Civil Appeal No. 304 of 1984 it was observed that defendant No. 1 - Allabaksha had become owner of the property by adverse possession and 'prima facie, the defendant No. 1 was in possession to the exclusion of the plaintiff and other defendants'. It is settled position of law that the principle of res judicata binds co-defendants if relief granted or refused by the earlier decision involved a determination of an issue between the co-defendants or co-respondents, as the case may be. If an issue was between the plaintiffs and some of the defendants and no such issue between co-defendants was required to be decided for determining the issue between the plaintiffs and the defendants, any finding on any such issue between the plaintiffs and the defendants would not be binding on the co-defendants in any subsequent suit between them. In Maung Sein Done v. Ma Pan Nyun and Ors. : AIR 1932 P.C. 161, Their Lordships of the Privy Council observed as follows:
It is well settled that the statement of the doctrine of res judicata contained therein is not exhaustive, and that recourse may properly be had to decisions of the English Courts for the purpose of ascertaining the general principles governing the application of the doctrine. The well known statement of Wigram V.C. In Cottingham v. Earl of Shrewsbury (1) (p. 638) may, their Lordships think, properly be cited in reference to the present case, viz:
If a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the Court will try and decide that case, and the co-defendants will be bound. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains.
In Namdeo Digamber Gaikwad and Ors. v. Vijaykumar Ramchandra Shah and Ors. : AIR 1963 Bombay 244, the Division Bench of this Court observed as follows in para 11:.Moreover both the decree-holder's heirs and the judgment-debtors were co-respondents i.e. in the position of co-defendants and that question not being in dispute between them the finding could not be conclusive. That question therefore, could not have been decided by the learned Judges and they have not actually decided it. The question therefore is still open.
In Mahboob Sahab v. Syed Ismail and Ors. : AIR 1995 SC 1205, Their Lordships of the Supreme Court observed as follows in para 8:.In other words, if a plaintiff cannot get at his right without trying and deciding a case between co-defendants, the court will try and decide the case, and the co-defendants will be bound by the decree. But if the relief given to the plaintiff does not require or involve a decision of any case between co-defendants, the co-defendants will not be bound as between each other.
14. In Suit No. 214 of 1975 filed by the present defendant Nos. 5, 6 and 7, the issue involved was between the said plaintiffs and defendant No. 1 - Allabaksha as to whether defendant No. 1 had become owner of the half share of the plaintiffs in the house property at Vaduj by adverse possession and whether the suit filed by the plaintiffs in that respect was barred by limitation. The defendant Nos. 2 and 3 (i.e. the present plaintiff and defendant No. 2) had only supported the claim of the plaintiffs therein. There was no issue as to whether the defendant No. 1 had also become owner of the property by adverse possession vis-a-vis the defendant Nos. 2 and 3. The only issue which was required to be decided was between the plaintiffs and defendant No. 1 and that is clear from the points raised by the appellate Court as noted above. In view of the settled legal position, the finding of the appellate Court in the said Appeal No. 304/1984 would operate as a res judicata if a similar issue arises between the said plaintiffs and the defendant No. 1 in future,but it could not operate as res judicata in the litigation between the present plaintiff and the defendant No. 1, who were co-defendants in that earlier litigation. The first appellate Court while deciding Regular Civil No. 284 of 1999, without considering the facts and the legal position in this respect, jumped to the conclusion that the findings in Appeal No. 304 of 1984 would operate as res judicata against the present plaintiff also. In fact, the trial Court had given sufficient reasons as to why the findings in Appeal No. 304 of 1984 could not operate as res judicata in the present litigation. Taking into consideration the facts and circumstances and the legal position, the finding of the first appellate Court in this respect was clearly wrong. The plaintiff and the defendant Nos. 1 and 2 could claim equal share in the suit houses situate at Vaduj.
15. The next question is about the land Gat Nos. 300,303 and 309 situate at Village Budh. The trial Court dealt with the landed property at Village Budh in detail in paras 22 and 23 of the Judgment. He has referred to the several sale deeds under which Ahmad Mulani had purchased certain landed properties under different sale deeds. He had also considered 7 x 12 extracts of the said lands and found that the land Gat Nos.295, 296, 301 and 308 were purchased by Ahmad Mulani and accordingly consolidation certificate was issued in his favour. As far as the lands Gat Nos. 300, 303 and 309 are concerned, they were the ancestral properties in the hands of Abdul Mulani, who was brother of Ahmad and Husen Mulani. After death of Abdul, these properties were recorded in he name of defendant No. 5 under Mutation Entry No. 5482 and accordingly his name was shown as holder in the Record of Rights. The defendant Nos. 5, 6 and 8 admitted these facts in the Written Statement and therefore, the trial Court came to conclusion that the plaintiff is entitled to partition of the land Gat Nos. 300, 303 and 309 of Village Budh.
16. The first appellate Court in Regular Civil Appeal No. 284 of 1999, noted that Survey No. 40/4, 40/14, 40/20 and 40/29, besides the other lands, were purchased by Ahmad in 1949. Out of them, Survey No. 40/29 was consolidated in Gat No. 300. Survey No. 40/4 was consolidated in Gat No. 309 and Survey No. 40/20 was consolidated in Gat No. 303. In view of this, the appellate Court jumped to the conclusion that 3 Gat Nos. became the property of defendant Nos. 5, 6 and 7 as the legal heirs of Ahamad Mulani. In the same para, the appellate Court also recorded that land Gat No. 40/5-B and 40/5-C were consolidated in Gat No. 309. Survey No. 40/17A and Survey No. 40/17B were consolidated in Gat No. 303 and Survey No. 40/29 were merged in Gat No. 300. He observed that the land Survey No. 40/5B, 40/5C, 40/17A and 40/29 were standing in the name of Abdul.
16. The evidence of defendant No. 6 Gulab show that Abdul had died sometime in 1940 and after his death, the land was in possession of the defendant No. 5 Jafar. For the first time, the said land was recorded in the name of Jafar in the year 1971. Therefore, according to him, he claimed to be owner of the said property. These lands were merged with the other lands of Ahmad. After consolidation, the land Gat Nos. 300, 303 and 309 were recorded in the name of sos of Ahmad. Under the provisions of Section 24 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, on completion of the scheme for consolidation of the holdings, the Consolidation Officer shall grant to every owner to whom a holding has been allotted in pursuance of a scheme of consolidation a certificate in the prescribed form to the effect that the holding has been transferred to him in pursuance of the scheme. On the basis of that, a new record of rights is required to be prepared. It means after the consolidation, the land Gat Nos. 300, 303 and 309 were standing in the names of sons of Ahmad. The plaintiff in the present litigation filed the suit for partition and separate possession in 1993 i.e. about 22 years after the lands of Abdul were recorded in the name of Jafar and also long after the said lands were consolidated in the other lands of Ahmad. Therefore, it can be said that after consolidation, title over the said land vested in the sons of Ahmad. Therefore, the plaintiff could not get any share in the said property. If he wanted to challenge the consolidation, he could take an action under the provisions of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act. Therefore, to the extent of these three lands at Budh, I do not find any fault with the appellate Court. In view of this, the findings of the first appellate Court in Appeal No. 284 of 1999 will have to be upheld and Second Appeal No. 980 of 2004 challenging that decree will have to be dismissed.
17. The next question is about the share of the plaintiff in the property. Admittedly, the plaintiff and defendant Nos. 1 and 2 are brothers inter-se. Defendant Nos. 3 and 4 are their sister and mother respectively. Under the Muslim Law, on death of their father, all the three brothers would be entitled to equal share and the mother and sister would get half of share of each brother. Therefore, if all these persons would be entitled, each brother would get 1/4th share while mother and sister would get 1/8th share each. However, in the present case, defendant Nos. 3 and 4 supported the claim of the plaintiff wherein he had claimed 1/3rd share and the trial Court noted that defendant Nos. 3 and 4 had specifically relinquished their share in the property. If they had relinquished their share in the suit property, naturally, the property would be divided equally between the three brothers i.e. the plaintiff and defendant Nos. 1 and 2 and each of them would be entitled to 1/3rd share. The trial Court had granted 1/3rd share to the plaintiff, while the first appellate Court reduced to 1/4th share without considering the Written Statement of the defendant Nos. 3 and 4. Therefore, the finding of the appellate court was not correct.
18. For the aforesaid reasons, in view of the facts and circumstances and the legal position noted above, the Judgment of the first appellate Court is partly liable to be set aside.
19. In the result, Second Appeal No. 980 of 2004 is hereby dismissed. Second Appeal No. 981 of 2004 is hereby allowed and the Judgment passed by the 1st appellate court in Regular Civil Appeal No. 289 of 1999 is hereby set aside and to the extent of the houses at Vaduj, the Judgment of the trial Court in Regular Civil Suit No. 26 of 1993 is hereby restored.
20. The learned Counsel for the respondents seeks stay to the execution of decree in Regular Civil Suit No. 26 of 1993 to the extent of the house property at Vaduj. The parties shall maintain status quo for eight weeks.