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Judgment
Chapman, J.—This appeal arises out of a suit for a declaration that the plaintiffs hold one-anna share in Mouzah Rampur, that the mokurari right which the defendants claim to hold in this one-anna share is not so held by them. The plaintiffs asked for a partition.
The plaintiffs derived their title to the one-anna share from one Musammat Tamizan. The defendants claim to be the descendants of certain persons to whom the mokurari of one anna share was granted in the year 1859 by one Bibi Bukhshan.
The grant of the mokurari by Bibi Bukhshan is not denied. The contest is on the question whether the one anna, the mokurari of which was granted by Bibi Bukhshan, is the same one anna as that which was purchased by the present plaintiffs. The right of the plaintiffs to one-anna share in the estate is not now disputed. The question for determination, therefore, is whether the defendants have been able to make out that their mokurari was attached to this one-anna share.
It appears that the original entire sixteen annas belonged to one Galib. He had two wives named Pati Begum and Bibi Bukhshan, and a son by Bibi Bukhshan named Shah Lal. Bibi Bukhshan had, as I have stated, granted a mokurari in 1859 of a one-anna share to the predecessors of the defendants. In 1862 the rights and interests of Musammat Bibi Bukhshan and her son Shah Lal in seven annas were put up to sale in execution of a decree and purchased by two persons named Pairan and Sharifan. In the remarks column of the sale certificate it is recited that an objection had been made by certain persons claiming under the moukrari granted by Bibi Bukhshan in the year 1859, which I have above referred to. There is then a conveyance by one Kabir the son of Pairan acting as attorney for Pairan and Sharifan of two-annas share to Mahamdi Begum, the wife of Shah Lal the son of Bukhshan. In this deed it is recited that the two vendors had purchased the seven annas at the execution sale in 1862 in equal shares. The sale-deed is dated the 16th January 1863. The deed makes reference to the fact stated in the sale-certificate that the holders of the mokurari had objected. Of the two annas conveyed by this deed one half anna belonged to Sharifan and half anna to Pairan.
Thus after the sale three annas were left to Pairan and of these three annas, two annas devolved on Pairan''s son named Kabir and one anna on her daughter Latifan. The mokurari is said by the respondents to have been distributed proportionately and was thus held two-thirds under Kabir and one-third under Latifan. Latifan sold half of her one anna share to one Mohur Singh under a conveyance of the year 1884. She recites that she sells 10 dams out of the one anna inherited by her from her father--the respondents had to say that the word "father" here is a mistake for "mother. " The other 10 dams were sold by Latifan to her daughter Amirul Fatima by a conveyance of the year 1888. This daughter sold the 10 dams to her uncle Kabir by a conveyance of the year 1890. Kabir had as I have stated, previously inherited two annas share. Kabir had thus two annas 10 dams. In the conveyance of the 10 dams to Kabir it is recited that the milkiat and mokurari of Amirul Fatima is transferred. The respondents had to say that the. words "mokurari right" here do not mean, as they usually do, the right to hold the mokurari, but mean the right to receive the rent from the mokuraridar. The 10 dams which Latifan, Kabir''s sister, sold to Mohur Singh were said to be free from the mokurari inasmuch as full price was paid. The remaining two annas 10 dams inherited by the brother and sister from their mother Pairan were now in the hands of the brother Kabir, and the contention is that the mokurari attached to 10 dams out of this two annas 10 dams held by Kabir. The other 10 dams to which the mokurari attached passed, the respondents say, to Sharifan, who, it will be remembered, purchased equal shares with Pairan under the sale-certificate of the year 1863. Tamizan is the widow of Kabir and Kabir''s two annas 10 dams were inherited by Tamizan and by the children of Kabir. The plaintiffs have derived their title from these persons.
The respondents contend that they have been able to show that 1C dams of the one anna now held by the plaintiffs were subject to the mokurari. As regards the other 10 dams which the respondents say passed to Sharifan at the execution sale of 1863 subject to the mokurari, the respondents now admit that they have not been able to trace the passage of these 10 dams from the possession of Sharifan to the possession of Kabir. So far as these latter 10 dams are concerned, the respondents admittedly were unable to make out any case upon the facts. I am of opinion that in regard to the other 10 dams the respondents also failed. In the first place there is nothing to show that the one-anna share of Bukhshan which she had given in mokurari passed at the sale in 1863 to Pairan and Sharifan except the note in the sale-certificate above referred to, to the effect that certain persons had objected to the sale on the ground that they held this mokurari, but even if the recital in the sale-certificate were held to prove that a portion of the property sold was subject to this mokurari, it would be impossible to say what portion of the seven annas then sold was so subject, for it is not recited what portion of the seven annas sold belonged to Bukhshan and what to Shah Lal--the joint properties of both were sold. Bukhshan had inherited from the previous owner Galib presumably one-eighth of the entire estate and Shah Lal probably seven-eighths, so that from the commencement of the story there is insuperable difficulty in tracing the one anna subject to Bukhshan''s mokurari even as far as Pairan and Sharifan and there are other difficulties at later stages of the story.
Moreover, if we are to base our judgment merely on surmises from recitals in documents, it is equally probable that the mokurari attached entirely to the share purchased by Sharifan [see Exhibit 20 (a)].
As against the respondents'' contention there is the fact that Musammat Tamizan was registered in respect of a 10-dams share as absolute owner in 1878 (Exhibit 3), that on the 14th May 1884 she obtained a separate account in respect of the 10-dams share, she paid revenue accordingly, and in 1888 sued in this character successfully in ejectment (Exhibits 19 and 19A). All this is inconsistent with the respondents'' case.
I am not satisfied with the evidence offered by the respondents to prove possession of the mokurari. Having regard to their failure to adduce the evidence that might have been adduced, I find that they have not been in possession of it.
The respondents then say that the question of the existence of this mokurari has already been decided in the course of a partition suit to which they and the plaintiffs vendors were parties. This partition suit was filed by one Yakub Hussain, one of the co-sharers of the mauza, in September 1898. The respondents were co-sharer proprietors of the mauza and Musammat Tamizan was also a co-sharer proprietor.
On the 5th of October 1898 a written statement, purporting to have been filed in that case by Musammat Tamizan, stated that the extent of her proprietary share had bean correctly stated in the plaint and that she too desired partition. Three months later, in January 1899, the defendants put in a written statement contesting the suit for partition upon various grounds and incidentally claiming that in addition to their proprietary share, as stated in the plaint, they had held a one-anna mokurari right under defendants Nos. 6 and 10, the daughters of Musammat Tamizan. There is nothing to show that this claim to a mokurari was brought to the notice of Musammat Tamizan who was not contesting the suit for partition. The contest was only between Yakub Hussain and the present defendants. The plaintiffs in the present suit say that an issue was framed in that partition suit between the contesting parties upon the subject of the mokurari claim of defendants, who were the contesting defendants in the partition suit and that on the 2nd March 1899 the defendants fraudulently caused a petition to be filed on behalf of Musammat Tamizan and her two daughters admitting the defendants'' claim to mokurari, that this petition was merely filed and that no order was passed upon it. This petition has never been proved and if the defendants seek to rely upon this admission of the plaintiffs, they can rely upon it only as a whole. Moreover, the evidence to the effect that Musammat Tamizan and her daughters were not in fact parties to this petition, whatever it was, has not been rebutted. No evidence has been offered that they were in fact parties to it and it is the fact that no order was passed on the petition by the Court.
An issue was framed on the subject of the mokurari on the 7th of August 1901. Yakub Hussain, the plaintiff in that suit who had himself purchased a portion of the share held by Musammat Tamizan, admitted, as it was to his interest to do, that the contesting defendants did hold the mokurari they claimed in the one anna retained by Musammat Tamizan, which had not passed to the plaintiff Yakub Hussain under his recent purchase. The order of the Court was that the issue regarding the mokurari be expunged.
Then followed the judgment of 19th August 1901 directing the partition: In the course of this judgment it is again stated that the issue regarding the one-anna mokurari claimed by the contesting defendants has been expunged. The judgment notes that Musammat Tamizan and her daughter together with the other defendants in the case merely state their own share which means, I take it, that they made no contest. It appears, however, that subsequently when the partition was actually carried into effect, the present defendants were allotted possession not only of their proprietary share but also the mokurari of one anna which they then claimed to hold under the daughters of Musammat Tamizan. The present plaintiffs made their purchase during the pendency of this partition and they put in a petition before the Court asking to be made parties, but so far as this went the partition had then proceeded too far. At any rate it is clear in the first place that the question as it now stands did not arise in its present form, for the defendants claimed in that partition suit to hold not under Musammat Tamizan but under her daughters; secondly, the question was not raised in that suit at all except between Yakub Hussain who was seeking partition in that suit and the present defendants, for the present defendants did not put in their claim to the mokurari in that partition suit until three months after Musammat Tamizan and her daughters had put in their written statement saying that they did not contest (the defendants have failed to make out that Musammat Tamizan was aware of the claim of mokurari made in their subsequent written statement); thirdly, the preliminary judgment of the Court in the partition suit states expressly that the issue was expunged. No doubt the effect of the final decree for the partition was to give the defendants possession of the one-anna they claimed under the mokurari deed but the defendants have in my opinion entirely failed to make out that Musammat Tamizan or the present plaintiffs had any suitable opportunity of contesting the point. They have also failed to make out clearly that the final decree for partition did not in fact leave the question open. There is at least a suggestion in the Commissioner''s report upon which the final decree was based that the question was left open. One thing at any rate is clear: that the question was not expressly decided and in the circumstances above set forth, it is, in my opinion, impossible to hold that a decision might and ought to have been obtained in the previous partition suit by Musammat Tamizan or the present plaintiffs. The result is that in my opinion the defendants failed to make out that the plaintiffs were barred by the rule of res judicata. I have also no doubt that they have failed to prove that Musammat Tamizan made any admission in that partition suit and they have also failed to prove on the facts that the mokurari granted by Bibi Bukhshan attached to the plaintiffs'' one-anna share.
I have not made a reference to the judgment of the learned Subordinate Judge, because that judgment is of an extremely unsatisfactory nature. The case was a difficult one and the judgment is perfunctory and ill-informed. In the first place he found that the plaintiffs were not in possession of their share, but so far as 10 dams are concerned there can be no doubt about the plaintiffs'' possession, for they had been successful in a previous rent suit. That suit related to only 10 dams, it is true, but in view of the plaintiffs'' success in respect of the 10 dams there can be no real doubt that the evidence that they are in possession of the remaining 10 dams, is true. Upon the question of res judicata the learned Subordinate Judge has gone wrong because he has not given any consideration to the facts.
The result is that the judgment and decree of the learned Subordinate Judge dismissing the suit for partition is set aside and in lieu thereof I direct that it be declared that the plaintiffs are proprietors holding possession of one-anna out of sixteen annas in the mauza mentioned in the plaint; that the defondants have not the mokurari right in this one anna which they claim; and that a separate takhta be allotted to plaintiffs in continuity to the takhta allotted to them in the previous partition suit out of the takhta which was allotted to the defendants in that suit under a decree dated the 27th June 1907. The case will be remitted to the first Court. The partition will be carried out by a Commissioner under his direction and the case disposed of accordingly. The plaintiffs are entitled to their costs in both Courts.
Atkinson, J.
I agree.