Ramjosh Marwari vs Chandra Mandal and Others

Scroope, J.—The suit out of which this second appeal arises was for a tank called Baburbandh in village Chharrah in which one Harijiban Bhagat had a 4 annas share. In 1307 he granted a mukarrari of that share to the mandal defendants-respondents but this tank Baburbandh was not included in the mukarrari deed. That is the admitted case of the parties. Subsequently Harijiban sold his 2 annas milkiat share to defendant 5 and the remaining 2 annas to the plaintiff. So the plaintiff''s case is that he and defendant 5 half and half own the tank in question, whereas the Record of Rights shows the tank as within the mukarrari of the mandal defendants.

In 1914 one of the maliks brought a suit for partition of all the tanks in the mauza as well as other ijmali properties and Harijiban Bhagat was a pro-forma defendant in that suit. The plaintiffs in that partition suit may be described as the Manjhis and they had acquired 2 annas 3 pies share out of 4 annas share belonging to one Khetranath Bhagat who was co-sharer to the extent of 4 annas also along with Harijiban Bhatgat, also of 4 annas, and the partition suit was filed for the bandhs and tanks within the 8 annas share of Harijiban and Khetranath. The defendants were the mandals, now defendant-respondents and persons who may be described as Kabirajes who had acquired a portion, 1 anna 9 pies, of Khetranath''s share. Harijiban Bhagat was a pro-forma defendant.

This suit was fought up to the High Court, the case of the plaintiffs being that all the tanks in the suit appertained to the 8 annas share of Harijiban and Khetranath, acquired by the Manjhis, Kabirajes and Mandals, the two first named being the pro-forma defendants, and they claimed a share proportionate to their purchased interest and alleged that the mandals had 8 annas share and the remaining share belonged to the Kabiraj defendants. In that suit Harijiban did not appear though as I say he was made a pro-forma defendant. The mandals however filed a written statement, alleging that Harijiban had a share corresponding to his original milkiyat interest of 4 annas, in the bandh. An issue was framed in that partition suit as to whether Harijiban had one-fourth share in the said tank or bandh, but at the time of the trial this issue was not pressed.

It was found by the learned Subordinate Judge then that Udai had proved his case against the absent defendants Harijiban and Khetranath. A decree for partition was drawn up and this bandh was allotted to the mandals and both the Courts below, the Munsif of Purulia and on appeal the Additional Subordinate Judge of Purulia, have now found that the claim of plaintiff is barred by res judicata as well as by limitation. The point taken in appeal by Mr. Mazumdar for the appellant-plaintiff is that the principle of res judicata does not apply, because in that suit he was only a co-defendant, in fact only a pro forma defendant, with the present respondents who seek to bar him by res judicata; that the mandal respondents in their written statement had admitted his share and that the whole-partition proceeded on that basis, and that it was therefore not necessary for him to do anything and that the decision cannot therefore operate as res judicata.

The test of res judicata has been laid down in a well-known rule which has been expressed by Wigram. V.C., in Cottingham v. Earl of Shrewsbury (1843) 3 Hare 627 in these words:

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 my opinion this test is fulfilled here. In the present instance the Manjhis (the then plaintiffs) could not have got this Baburbandh partitioned except on the assumption that it fell within the mandals'' mukarrari from Harijiban. There was an express issue raised by the Subordinate Judge on the point evidently on the basis of the mandals'' written statement: "Has defendant 8 got one-fourth share in the tank mentioned in the schedule," i.e., in the present disputed tank? Nothing could be clearer than this: the issue was not however contested and the partition proceeded to allot the tank to the share of the mandals. Harijiban was not allotted anything at all much less the tank; he never appeared in the suit although he was made a party up to the appeal in the High Court by the mandals. Had the tank been allotted to the Manjhis certainly the plaintiff could not have claimed that the decision would not be res judicata seeing that he was a party.

I entirely fail to see how he should be less bound by the principle of res judicata because it has been allotted to the mandals. It is not as if Harijiban had allowed the mandals to represent him in the litigation; that is not the case here, nor was it the plaintiff''s case that in spite of the bandh being excluded from the lease Harijiban had allowed the mandals to occupy the tank.

I agree therefore with the Court below that the principle of res judicata applies and that the suit is barred. The plaintiffs'' predecessor Harijiban had the opportunity of getting this matter decided in the partition suit and he failed to do so and he cannot be allowed to agitate the matter again.

It is unnecessary therefore to go into the matter of limitation. I would only say that I would not be prepared to hold that the suit would fail on this account. (Here the judgment discussed facts and then concluded as follows).

The plaintiff''s suit must however fail on the score of res judicata and the appeal must accordingly be dismissed with costs. Leave to appeal granted.