Joginder Singh vs Dhan Kaur and Others

S.P. Goyal, J.—Hazara Singh, his brother Badan Singh and Smt. Kishan Kaur wife of another brother Bishan Singh were owners of 1/3 share and in the land measuring 73 bighas, 16 biswas. Smt. Kishan Kaur gifted her 1/3 share vide registered deed, Exhibit P-7, dated May 23, 1958 Sham Singh thus became owner of 2/3 share in the said land He, on August 30, 1961, gifted away 1/3 share in favour of his wife, Smt. Nirlobh Kaur, vide registered deed. Exhibit P-9 and sold the remaining 1/3 share to Dhan Kaur, vide sale-deed, Exhibit P-2, dated March 15, 1962 Smt Nirlobh Kaur further transferred 1/6 share out of her 1/3 share in favour of Dhan Kaur.

Mohmder Singh and Joginder Singh, Appellants, sons of Badan Singh, on March 26, 1962, filed a suit under custom against Sham Singh without impleading Smt. Nirlobh Kaur and Dhan Kaur for a declaration that the land sold being ancestral qua them and the sale having been effected without legal necessity would not be binding against their reversionary rights after the death of the vendor. This suit was decreed on May 20, 1963.

The present suit was filed by Smt. Dhan Kaur and Nirlobh Kaur on April 11, 1966, for joint possession of the suit land to the extent of 2/3 share on the basis of their title as the area already in their possession was stated to be far less than their share. The appellants contested the suit, denied that Kishan Kaur was the widow of Bishan Singh and claimed that the share of Bishan Singh had been inherited by them being his nearest heirs. As regards the share of Hazara Singh, the plea set up was that the sale made in favour of Sham Singh has already been declared to be void and ineffective against their rights. The trial Court found Kishan Kaur to be the widow of Bishan Singh and upheld the gift made by her in favour of Sham Singh. So far as the share of Hizara Singh it concerned, it was held that the vendor being alive the Appellants had no right to resist the claim of the Plaintiffs, the transferees from Sham Singh, to its possession. In view of these rinding, a decree for possession of 2/3 share of the land in dispute was passed. On appeal, the finding that Kishan Kaur was the widow of Bishan Singh was affirmed However, in the meantime, Hazara Singh died on February 3, 1970 and so the Appellants raised a contention that they have become owners being his nearest reversioners. This contention was rejected on two grounds that the Plaintiff Respondents were not bound by the decree passed in favour of the Appellants and that no suit having been filed for possession within three years of the death of Hazara Singh, the rights under the declaratory decree stood extinguished. On facts, it was found that the Appellants were entitled to inherit only 2/10 share out of Hazara Singh''s share As a consequence of these findings, the decree of the trial Court was affirmed. Still dissatisfied, Mohinder Singh and Joginder Singh, Defendants, have come up in this second appeal.

The finding of the lower appellate Court that the Plaintiffs were not bound by the declaratory decree against Sham Singh was based on the fact that the land in their favour had been transferred on August 30, 1961 and March 15, 1962 prior to the filing of the suit on March 28, 1962. As held in AIR 1948 168 (Privy Council) a decree obtained in a suit is not binding upon transferees from one of the parties to the suit, when the transfers were effected before the suit. Such a person does not claim under a party to a suit who represents his interest but under a person who subsequently becomes a party who at the time of the suit does not represent him. A decree in such a suit cannot operate as res judicata against such transferee. The Learned Counsel for the Appellants, however, relying on Explanation IV to section II C.P.C, contended that the Plaintiffs were bound by such a declaratory decree. According to this Explanation, any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly or substantially in issue in such suit. It passes my comprehension as to how this Explanation has at all any bearing on the matter in issue.

For the contention that the Plaintiffs having derived title from Sham Singh would be bound by the declaratory decree passed against him, the Learned Counsel relied on Sheikh Yusuf Vs. Jyotish Chandra Banerjee and Others, . In that case the sub-tenant was held to be bound by the decree of ejectment passed against the lessee. The sub-lessee was held bound by the decree as he had no independant right of his own and the right created by the tenant in his favour terminated with the right of the tenant coming to an end by the ejectment decree. This decision consequently deals with a different situation and is of no help to the Appellants. So far as the transferees in the present case are concerned, as held by the Privy Council in Beli Ram''s case (supra) Sham Singh could not be termed as their representative because transfer in their favour had taken place prior to the institution of the suit and they had independent right to defend the transfer made by Hazara Singh. The judgment of the courts below, therefore, has to be sustained on this ground alone and as such, I do not propose to express any opinion on the second ground given by the learned Additional District Judge for holding that the rights of the Appellants to recover possession in pursuance of the declaratory decree has been extinguished as no suit for possession was filed within three years of the death of Hazara Singh.

For the reasons recorded above, this appeal fails and is hereby dismissed but without any order as to costs.