Abdul Gani and anr. Vs. Nabendra Kishore Roy and ors. - Court Judgment

1. This appeal has arisen out of a suit for setting aside an order passed in a claim case releasing certain property from attachment, for a declaration of defendant 1's title thereto and for a further declaration that the property is liable to be sold in execution of a decree against the said defendant 1. The Courts below have decreed the suit. Defendants 1 and 2 have appealed to this Court.

2. The plaintiff's case was that defendants 1 and 2 inherited the property in equal shares from their father Kamar Ali Bepari. He attached a half share of defendant 1 in the said property in execution of a decree he held against the said defendant, but, defendant 1 having raised an objection that he was possessing it as mutwalli the property was released from attachment. Hence the present suit under Order 24, Rule 63, Civil P.C.

3. The property in suit are some lands in a taluk named Sitaram. In 1894 Kamar Ali created a wakf in respect of five taluks of which Sitaram was one, the other four taluks being Joykrishnh, Manwar Khan, Durgaram and Mohamed Mokim. Kamar Ali died in the same year.

4. In 1898, one Emdad Ali attached taluk Sitaram in execution of a decree. The defendants setting up the wakf got the taluk released from attachment.

5. In 1897 the plaintiffs purchased the 4 annas Pahali zemindari at a revenue sale and in 1907 they brought a suit for khas possession of two of the taluks viz., Joykrishna and Manwar Khan on the ground that they had been annulled by the revenue sale. Defendant 1 in the present suit was one of the defendants (being No. 10) in that suit. The suit was decreed ex parte in 1908 the plaintiff being awarded khas possession, mesne profits and costs. As a result of proceedings taken by defendant 1 this ex parte decree was eventually set aside in so far as it was against the said defendant 1. Defendant 1 then entered appearance and contested the suit with the result that in 1914 it was decreed on contest as regards taluk Joykrishna, the plaintiffs getting khas possession of the lands of that taluk with costs, while it was dismissed as regards taluk Manwar Khan as it was found to have been created before the Permanent Settlement.

6. While defendant 1 was contesting the ex parte decree of 1908 in the aforesaid way the said decree in so far as it was for mesne profits and costs was executed by the plaintiffs and in such execution the plaintiffs attached the lands of taluk Sitaram, i.e. the property in the present suit. Defendant 1 started a claim case on the allegation that it was wakf property. The plaintiffs subsequently filed a petition in which they admitted that taluk Sitaram was wakf property and consented to its being released from attachment. This was sometime in 1910.

8. Then, when after contest with defendant 1 the plaintiffs in 1914 obtained a partial decree in respect of taluk Joykrishna with costs, they started execution in respect of the decree for costs and attached the share of defendant 1 in taluk Manwar Khan and having put it up to sale purchased it himself.

9. In 1915 the plaintiffs instituted two rent suits against certain tenants of taluk Manwar Khan making defendant 1 a pro forma defendant therein. Defendant 1 as such pro forma defendant took the plea that the properties were wakf and the rent suits were dismissed in 1916, the dismissal being finally upheld on appeal in 1918.

10. One of the taluks, namely, Durgaram.1 was sold for arrears of rent by the Maharaja of Tipperah, the superior landlord, and was purchased by the plaintiffs, after which in 1915 the plaintiffs instituted a suit in which defendant 1 pleaded that the rent decree had not been obtained against the mutwallis but only against one of them in his personal capacity and so the tenure did not pass at the sale. The suit was dismissed in 1918, but the dismissal was reversed on appeal in 1919 and ultimately on a second appeal to this 'Court the trial Court's decree dismissing the suit was-upheld in 1921.

11. In 1916, while the suit last mentioned' was pending the mutwallis including: defendant 1 brought a suit against the plaintiffs for a declaration that two of the taluks Manwar Khan and Joykrishna were wakf properties. The suit-was decreed by the trial Court in 1919, but the decision was reversed on appeal by the Court of first appeal in 1921, and: in 1923 this Court on second appeal upheld the reversal.

12. The above, in short, is a history of the taluks in so far as it is necessary to be said for our present purposes.

13. The contentions that have been urged before us are four in number of which the first three are the following 1st, that the plaintiffs are under a personal bar they having in 1910 admitted that taluk Sitaram was wakf and consented to the release thereof from attachment; 2nd, that the decision of 1921 operates-as res judicata in defendant's favour and 3rd, that the decision of 1923 cannot operate as res judicata.

14. The first contention above set out is-founded upon a petition marked as Ex. D in the case. In it the plaintiffs merely stated that it appeared that the property (meaning taluk Sitaram) was included in the wakf and they had no-objection to its being released from attachment. Now, in the first place, there was no admission as regards the validity of the wakf which is the question in the present suit, but merely an admission to the effect that taluk Sitaram was included in the wakf. Nextly even if it be regarded as an admission as to the validity of the wakf there is nothing that may make this admission operate as an estoppel is present in the case. The decision in the case of Rajah Moottoo Vijaya Ranganadha v. Katama Natchiar [1866] 11 M.I.A. 50 upon which the appellant relies, in our judgment, has no application to the case upon the ground, amongst others, that there was hero no decision based upon the admission as there was in that case.

15. The second contention is based upon the decision of 1921. This decision is Ex. H. We agree with the learned District Judge in the view that he has taken of it and hold that the question of the validity of the wakf did not and could not legitimately' arise in that suit and was not either expressly or even by implication decided therein.

16. The third contention relates to the decision of 1923. The suit in which this decision was passed related to two of the taluks, namely Manwar Khan and Joykrishna. Defendants 1 and 2 were the plaintiffs in that suit. They sued for declaration of their title therein as mutualism of the wakf and for other reliefs. The trial Court decreed the suit but on appeal the decree was reversed, the reversal being upheld by the High Court on second appeal, the suit being ultimately dismissed. The case of defendants 1 and 2, as plaintiffs in that suit, was that the two taluks existed from before the Permanent Settlement, that their father possessed the properties in taluk right and made a wakf of those properties and dedicated, them to a mosque and appointed them as mutwallis, that the plaintiffs in the present suit on the strength of their revenue sale purchase had obtained khas possession of some of the properties and in execution of the decree for costs had purchased the rest, but that their title as mutwallis was not affected. The present plaintiffs, as defendants in that suit, contended that the wakf set up was a collusive and paper transaction and had never been acted upon. The issue was:

Have the plaintiffs, defendants 1 and 2 in, the present suit then alleged mutwalli right in the disputed properties? Was the wakf nama set up a valid and genuine document? Was it acted upon

17. The Additional Judge held:

The wakf was a collusive paper transaction intended to keep the properties covered by the wakfnama safe from the claim of any possible future creditor or other claims of other persons. It is clear that the disputed property was never treated as wakf property and it was treated as secular property of Kamar Ali Patari and after his death it descended to his heirs as secular property and treated by them as secular property... There can be no doubt that the wakfnama created by Kamar Ali Patari was a sham, colourable transaction and it was not intended to be acted upon and it was not given effect to by Kamar Ali or by plaintiffs and they all treated the properties covered by the deed of wakf as their secular properties and enjoyed thorn as such and not for the upkeop and maintenance of the mosque. The properties covered by the deed of wakf were treated as personal properties both by Kamar Ali and his heirs.

18. This decision was upheld on appeal by the High Court. Now it is urged on behalf of the appellants that it does not operate as res judicata for two reasons: 1st because whereas in that suit the present plaintiffs as defendants challenged the validity of the wakf in their capacity as revenue sale purchasers and were setting up a title paramount and were not claiming through the settlor; in the present suit they are challenging the validity of the wakf in their capacity of persons claiming through the settlor; and 2nd because the subject-matters of the two suits are different; in the former suit it was the lands of taluks Joy Krishna and Manwar Khan and in the present it is the lands of taluk Sitaram. As regards the first of these reasons, it appears that the present plaintiff's were resisting the earlier suit not merely as purchasers are a revenue sale, but also as purchasers at a sale in execution of the decree for cost. They were defending as revenue sale purchasers the khas possession of taluk Joy Krishna that they had obtained as such. But they were also defending their purchase of taluk Manwar Khan at the sale in execution of the decree which they had obtained for costs, and this they could not have done merely as revenue sale purchasers and unless as persons claiming adversely to the endowment and through the settlor, which is exactly their position in the present suit. The words 'litigating under the same title' mean that the demand should have been of the same quality in the second suit as in the first one. In the present case both the demands were of the same quality, both in the character of judgment-creditors seeking to enforce their claim adversely to the endowment. No new title has accrued to the plaintiffs in the meantime and we are of opinion that in both these suits the plaintiffs and for the matter of that both the parties have litigated under the same title within the meaning of Section 11, of the Code. As regards the second reason, it is true that the subject-matter in the former litigation was the lands of taluk Joy Krishna and Manwar Khan and in the present suit it is the lands of taluk Sitaram but the expression 'matter in issue' in Section 11 of the Code:

is distinct from the subject-matter and the. object of the suit as well as from the relief Ithat may be asked for in it, and the cause of action on which it is based; and the rule of res judicata requiring the identity of the matter in issue will apply even when the subject-matter, the object, the relief and the cause of action are different.

19. In Bars v. Jackson 1 Phil. 582, the subject of the two suits were different, the two claims being perfectly distinct from each other, one for obtaining letters of administration and the other for taking a share of the property. In the case of Sandhyamala v. Debi Churn [1881] 6 Cal. 715, it was ruled that a suit for certain portion of A on the ground of A having been leased to the plaintiff would be barred by a decision as to A having not been leased to the plaintiff but to the defendant, in a previous suit by the plaintiff for another portion of A, with the same allegation of its having been leased to him. Similarly in Atlanta Balacharya v. Damodhar [1899] 13 Bom. 25, it was said:

It is true that in those suits the dispute was as to a piece of land other than the land now in suit. The plaintiffs there, as now, merely alleged that there had been a partition and that they had a separate share; the defendants there, as now, merely contended that there had been no partition. In the present case it cannot be held that the decision regarding the question of partition affected only the particular piece of land than in dispute, and left the defendants free to urge again in any subsequent suit that the family was joint in all other respects and as to all other property.

20. There are, it is true, decisions here and there in which a different view has been taken, but the generality of the cases have taken the view that where the whole title was in issue in a previous litigation, the same cannot again be agitated in a subsequent suit e.g., Kunji Amma v. Raman Menon [1895] 15 Mad. 494. In the case of Pahlwan Singh v. Risal Singh [1882] 4 All. 55, both the suits were by the obligee for several instalments of the amount of a bond and the interests thereon from the date of the bond. In the former suit, the defendants' contention as to the interest being payable only from the date of the bond was overruled and the interest from the date of the bond decreed, and that decree was held to be res judicata in regard to the same contention raised in the second suit. This is clear authority for the proposition that it is the matter in issue, and not the subject matter of the suit that forms the essential test of res judicata. In Bal Kishen v. Kishan Lal [1889] 11 All. 148, it was said:

There can be no doubt that for the purposes of res judicata it is not essential that the subject-matter of the litigation should be identical with the subject-matter of the previous suit of which the adjudication is made the foundation of the plea.

21. Their Lordships of the Judicial Committee in Pittapur Raja v. B. Sitayya [1885] 8 Mad. 219, observed:

It was contended on the part of the plaintiff that the cases do not establish that an estoppel is binding unless the suit relates to the same subject-matter, but it appears to their Lordships that the cases which have been referred to do not establish that position.

22. Therefore even if-the subject-matter of the second suit may be entirely different from the subject-matter of the first yet if the validity of the wakfnama and the lists of defendants 1 and 2 thereunder was in issue, as it was in the former litigation, the decision on that question could not be reopened and the issue reagitated in the present suit. The proposition receives ample support from the cases of Chandi Prosad v. Mahendra Singh [1902] 24 All. 112, Dwarka Das v. Akhay Singh [1908] 30 All. 470, Kedar Nath v. Sheosankar A.I.R. 1923 All. 613. We are of opinion, therefore, that the decision of 1923 does operate as res judicata and that the view taken by the learned District Judge was right.

23. The fourth contention relates to the question that would have arisen if we were of opinion the decisions of 1921 and 1923 had both decided the issue that arises in the present suit, on the question of the validity of the wakf. We have already stated that in our opinion the decision of 1921 had not that effect, and we accordingly do not consider it necessary to go into this matter.

24. The appeal is dismissed with costs.