Bibi Wasilan vs Mir Syed Hussain

Wort, J.—This case raises an important point as to the construction of Section 11, Civil P.C., on the doctrine of res judicata. There are two appeals involved in this case. Appeal No. 1147 and Appeal No. 1148. The suit was one for rent, and before the Subordinate Judge the plaintiff succeeded. As regards the appeal No. 1148, which I shall take first Mr. Hasan Jan argues that the Subordinate Judge was under a misapprehension when he awarded the full amount of rent claimed, namely, Rs. 155-3-3. He states that it was admitted by the plaintiff or one of his witnesses before the Munsif that the jama was Rs. 146-1-6. But the question did not come to be determined by the Munsif as he dismissed the suit.

On appeal, it is stated that the point was not argued because the defendant relied upon the admission of the witness before the Munsif and it was supposed that if the appeal succeeded the amount awarded would be the Rs. 145 and not the Rs. 154 which was claimed. However, the learned Subordinate Judge gave as I have already stated, a decree or the full amount Rs. 154, being the amount claimed by the plaintiff. This question is argued in appeal No. 1148, but I think it is concluded by the decision of the Munsif when in the course of his judgment he stated:

the objection regarding the correctness of the jamas of the other khatas has not , been pressed and I find no reason for holding them to be incorrect.

The respondent relies upon this passage and in the absence of any other statement on the record to the contrary, I must find that the learned Subordinate Judge was right in giving a decree for the full amount claimed. But the question of res judicata is a question, which is common to both appeals: appeal No. 1147 and appeal No. 1148. The plaintiff in the suits is one Mir Saiyid Hussain whose name did not appear as the lessor in the lease under which the defendant held these lands and the case of the defendant before both Courts was that the plaintiff had no right to sue because Saiyed Aulad Ali, who was named in the lease as the lessor, was in fact the lessor and not merely the farzidar as alleged by the plaintiff. This question has bean decided against the defendant by the learned Subordinate Judge and the point takaa before me is that although he may not be able to contest that question as being a decision on a question of fact, yet this Court is bound to come to a contrary conclusion as there was a decision on this between the parties in a former suit. Actually what has taken place is that on a date subsequent to the data on which this suit was instituted another suit was instituted by the defendant against the plaintiff. But in that case the defendant was a lassor and the present plaintiff who was in that suit the defendant was a tenant. It is unnecessary in this case to state exactly how that relationship arises but it is sufficient to state the fact that the subsequent suit went on appeal and there was a decision on this very question whether Saiyid Aulad Ali was a farzidar or not. It was held there that he was not a farzidar of Mir Saiyid Hussain but was in fact the lessee in that case, for there was an application to this Court which was dismissed summarily on 24th June 1927. That is between the date of the decision of the Subordinate Judge in appeals 1147 and 1148 and the hearing before ma and it is argued that in coming to a decision in this case I am bound by the decision in the other case on this question as being res judicata.

The question which arises is that this being a Court of appeal it is bound by the decision in the former case. The High Courts have taken different views on this question. The Calcutta High Court, in Abdul Majid v. Jew Narayan Mahto [1889] 16 Cal. 233 decides that wherein the expression "no Court shall try any suit" is used it means a trial in the first instance and that it does not apply to a Court of appeal, and that if a decision is come to prior to hearing in the Court of appeal which would otherwise be res judicate, it is not binding, however, upon a Court of appeal because they are not trying a suit.

The Madras High Court and the Allahabad High Court held a. different view and the decision in Balkishan v. Kishan Lal [1889] 11 All. 148 is an authority for the construction which is placed upon this section.

As this matter will constantly coma up between these parties and as it is a matter of some importance, I am of the opinion that this case should be placed before a Division Bench. The case was then argued before a Division Bench, where judgments ware as follows.

Kulwant Sahay, J.

These two appeals are by the defendant and arise out of two suits for rent. Appeal No. 1147 arises out of suit No. 355 of 1922 in which Sheikh Mohammad Kabir was the defendant. He is now dead and is represented by his widow Bibi Wasilan who was the defendant in suit No. 354 of 1922 out of which Second Appeal No. 1148 arises.

The plaintiff''s case is that he is the lessee in respect of 6 annas and odd share out of the 16 annas of mauza Hussainabad. He held 4 annas share under four registered pattas granted by different sets of proprietors, one of the pattas being of the share of Bibi Imaman and Bibi Batul in respect of 1 anna 18 dams 10 kauris odd share. The remaining 2 annas and odd was held by the plaintiff under an amaldastak from the defendants second party in the present suits. Suit No. 355 was in respect of a holding of 2131 acres of land held by the defendant, Muhammad Kabir at a rental of Rs. 116-11-17 dams and the rent was claimed for the years 1327-29. Suit No. 354 against Bibi Wasilan was in respect of five holdings which had been consolidated into one, bearing a consolidated rental of Rs. 152-14-3. The thikaa under which the plaintiff claimed stood in the name of one Aulad Ali and the plaintiff alleged that Aulad All was his beuatnidar. The defence of the defendants was that Aulad Ali was the thikadar in respect of the 4 annas covered by the four registered pattas and that he was not the farzidar for the plaintiff and that, as regards the remaining 2 annas and odd, the defence was that the plaintiff did not acquire any right to recover the rent for the years 1327-29 F.S., and there was a plea of payment.

The trial Court dismissed both the suits on the ground that Aulad Ali was the real thikadar and that the plaintiff was not entitled to the rent of the 4 anuas and as regards the remaining 2 annas odd, it was held that under the amaldastak the plaintiff was not entitled to the rent for the years 1327-29. There were appeals by the plaintiff in each suit and the learned Subordinate Judge held that Aulad Ali was a farzidar for the plaintiff and the plaintiff was the real thikadar in respect, of the 4 annas share, and as regards the amaldastak from the defendants-second-partly the learned Subordinate Judge held that the plaintiff was entitled to the rent in respect of the years 1328-29. He accordingly made a modified decree in favour of the plaintiff.

The present appeals were preferred by Bibi Wasilan in her own right in one case and as the representative of her late husband, Sheikh Muhammad Kabir, in the other case. The point argued is that the present suits are barred by res judicata on account of the decision in another suit instituted by Bibi Wasilan in which it has been held that Aulad Ali was the real thikadar. The circumstances under which the other suit was instituted are that Bibi Wasilan is also a part proprietor of the village.

Subsequently she acquired the interest of Bibi Imaman and Bibi Satul who were the executants of one out of the four pattas under which the plaintiff claimed, to the extent of 6 dams by purchase from Gulam Baza Khan the heir of the two ladies under a deed of sale dated 24th February 1922. The present suits, out of which the appeals now before us arise, were instituted by the present plaintiff Syed Hussain on 11th September 1922. The suits were dismissed by the Munsif on 24th September 1923, and they were decreed by the Subordinate Judge on appeal on 30th March 1925, and the present appeals were filed in this Court on 18th June 1925. Bibi Wasilan, the defendant in one of the present suits, instituted a suit for rent as proprietor against Aulad Ali as the thikadar in respect of her share in the proprietory interest. This suit was instituted on 19th August 1925, that is after the filing of the present appeals in this Court. The suit was, however, decreed by the Munsif on 10th March 1926, who held that Aulad Ali was the real thikadar, and this decision of the Muusif was upheld in appeal by the District Judge on 8th January 1927, and a second appeal to this Court was dismissed under Order 41, Rule 11, Civil P.C, on 24th June 1927.

Therefore, although Bibi Wasilan''s suit for the thika rent was instituted in point of time after the institution of the suits out of which the present appeals arise, yet it was finally decided before the final decision in the present appeals, and, it is therefore contended on behalf of the defendant appellant that the judgment in that suit operates as res judicata and the question whether the plaintiff or Aulad Ali was the real thikadar is no longer open between the parties, and it must be held that Aulad Ali was the real thikadar and the plaintiff could not maintain the present suit for rent.

Another point is taken in appeal No. 1148, which arises out of suit No. 354, viz., the question of the amount of the rent. Plaintiff claimed rent at Rs. 152-14-3, but the defendant alleged that the rent was Es. 145-1-6, and the question raised was that the Court below had not decided the amount of rent.

As regards the first point, viz., the question of res judicata, an affidavit has been filed on behalf of the appellant setting out the fact of the institution of the suit for thika rent by Bibi Wasilan and the decision thereof, and copies of the decisions of the Munsif as well as of the District Judge and the order of this Court dismissing the appeal under Order 41, Rule 11, have been produced. There can be no doubt that the question of res judicata can be raised in appeal: see Balkishan v. Kishan Lal [1889] 11 All. 148 and a decision of this Court in Dhani Singh and Others Vs. Sri Chandra Choor Deo and Others, , in which the previous decisions on the point are noticed. A different view was taken in Abdul Majid v. Jew Narain Mahto [1889] 16 Cal. 233 and in Mariamnissa Bibi v. Joyndb Bibi [1906] 33 Cal. 1101, by Ghose, Ag. C.J., and Harington, J., but Rampini, J. dissented from that view and his view was accepted by a Pull Bench of the Allahabad High Court in Zaharia v. Debia [1911] 33 All. 51. Later decisions in the Calcutta High Court have also taken the view that the plea can be taken in appeal Isup Ali and Others Vs. Gour Chandra Deb, . It is thus clear that it is open to the appellant to raise the question of res judicata in the present appeals.

Although the suit of Bibi Wasilan for the thika rent was in point of time subsequent to the present suits, yet it was finally decided prior to the final decision of the present suits by this Court, and under Expl. 1 to Section 11, Civil P.C, Bibi Wasilan''s suit must be taken to be the former suit within the meaning of Section 11 of the Code, and if the other elements necessary to constitute res judicata be established the decision in that suit will operate as res judicata in the present suits. The question is whether such elements have been established. In the suit of Bibi Wasilan, Aulad Ali was the defendant first party and Mir Syed Hussain, the present plaintiff, was the defendant second party. The suit was for arrears of rent in respect of one of the four thikas under which the present plaintiff bases his title in the present suits, viz., the thika patta executed by Bibi Imaman and Bibi Batul. The thika of these two ladies was in respect of 1 anna 18 dams 10 kauris odd share. Bibi Wasilan had purchased 6 dams out of this share under the deed of sale dated 24th February 1922, and she had instituted the suit against Aulad Ali as the defendant first party and Mir Syed Hussain as the defendant second party for realization of her share of the thika rent to the extent of 6 dams purchased by her. The title, therefore, under which she was litigating in the former suit was that of a proprietor, and the question raised was whether the relationship of landlord and tenant subsisted between her as proprietor and Aulad Ali as lessee. It was held in that case that Aulad Ali was the lessee. In the present suits the title under which Bibi Wasilan is contesting the suit is that of a raiyat in respect of certain land comprised within the thika lease. It is thus clear that in the former suit, although some of the parties, viz., Wasilan and Mir Syed Hussain, were; the same, yet they were not litigating under the same title. Moreover, Aulad Ali, who was a party in the former suit, is not a party in the present suits. He has given his evidence as a witness admitting that he was the farzidar for the present plaintiff. Thus all the parties in the two litigations are not the same. It appears that the Munsif expressly left is open the question as regards the rights between the two sets of defendants in the former suit, viz., between Aulad Alii and Syed Hussain and dismissed the suit against Syed Hussain. The last sentenca in the judgment of the Munsif in the former suit is:

Be it noted that the rights amongst the two defendants are kept open for a future trial.

From this it is clear that the decision in the former suit does not debar the plaintiff in the present suits from raising; the question that he is the real thikadar; and is entitled to recover rents, from the cultivating raiyats of the share leased to; him. All that was decided in the former; suit was that the lessor was not bound to recognize any other person as her lessee except the one in whose name the lease stood, but that decision did not debar the present plaintiff from recovering the rent from the cultivating raiyats if he succeeded in establishing as against Aulad Ali that he was entitled to do so. Although Aulad Ali is not a party to the present litigation, he admits in his evidence that the plaintiff is entitled to recover rents. The lessor may not be bound to recognize the present plaintiff, but the cultivating raiyats cannot raise the question if the ostensible thikadar admits that the plaintiff is the real thikadar. Wasilan''s suit had been dismissed as against the present plaintiff, and the decree being in his favour it is open to doubt whether he could appeal against the finding of the Munsif that Aulad Ali was the real thikadar, and if he could not appeal against that decree, the decision in that suit cannot operate as res judicata in the present suits.

Furthermore, the plaintiff in the present suits claims under four thika pattas Bibi Wasilan has acquired a fractional share of the interest of the lessor in one of those pittas, and the question o� res judicata cannot be raised as regards the title of the plaintiff under the other three pattas and the amaldastak. The issue which was decided in the former suit was Who was liable for the thika rent to the lessor? The issue involved in the present suits is Who is entitled to recover rent from the cultivating raiyats? The issues, therefore, in the two suits are not exactly the same. For all these reasons I am of opinion that the, decision in the former suit does not operate as res judicata in the present suits. The finding of the learned Subordinate Judge that Aulad Ali is a farzidar for the plaintiff is a finding of fact and it cannot be interfered with in second appeal.

The other point as regards the amount of rent arises only in one of the suits, viz., in the suit giving rise to Appeal No. 1148. The question of amount of rent was raised in issue 4 in the trial Court and the learned Munsif had reduced the amount in the suit giving rise to Appeal No. 1147. As regards the suit out of which Appeal No. 1148 arises, the learned Munsif said:

The objection regarding the correctness of the jamas of other khatas has not been pressed and I find no reason to hold them to be incorrect.

The question was not raised in the appeal before the Subordinate Judge, and I am of opinion that it is not open to the appellant to raise this question again in this second appeal. These appeals in the first instance came for decision before Wort, J., sitting singly and he found that the learned Subordinate Judge was right in giving a decree for the full amount claimed. He, however, referred these appeals to a Division Bench for a decision of the question of res judicata. I agree with Wort, J., and the contention of the appellant as regards the amount of rent must be overruled. The result of that these appeals are dismissed with costs.

Macpherson, J.

I agree.