MAQBOOL ALAM KHAN Vs. KHODAIJA

JUDGEMENT

(1.) Shaik Ahmad Ali was the holder of a tenure recorded in Khewat No. 4, tauzi No. 3309, Mouza Babhnaul comprising an area of 83.82 acres under the Maharaja of Dumraon. He died in 1910 leaving as his heirs, his mother Waziran, his second wife Elahijan, three sons Amanat, Ashghar and Ashraf and two daughters born of Elahijan, and two sons Hamid and Mahmud and four daughters born of his first wife Nabiban. Though all the heirs of Shaik Ahmad ali were co-sharers of the tenure, the names of Hamid and Mahmud only were recorded as the tenure-holders in the record of rights published in 1911. The Maharaja 13 of 1915 against Hamid and Mahmud only and obtained a decree for rent. The other co-sharers of the tenure including Amanat were not parties to the suit. Amanat died in 1924. Before and after 1924 there were several litigations concerning the rights of the co-sharers in the tenure. Eventually, under a compromise, Najma the wife of Amanat got 2 annans 8 pies 10 krant share in the teneure. Subsequently the Maharaja of Dumraon put the decree in Rent Suit No. 13 of 1915 into execution, and Latafat, son of Ashgar by his first wife Safidan, purchased the tenure at the execution sale. In October 1928, Latafat obtained possession of the tenure though Court. In May 1939, Najma instituted Title Suit No. 127 of 1939 against Latafat, the Maharaja of Dumraon and others asking for a declaration that her share in the tenure was not affected by the sale and for partition and possession of her share and mesne profits. During the pendency of this suit, the Maharaja of Dumraon instituted Rent Suit No. 1077 of 1939 against Latafat, obtained a decree for rent and put the decree into execution. At the execution sale in November 1940, Khodaija, the second wife of Ashgar, purchased the tenure. Thereupon, Khodaija was impleaded as a party in Title Suit No. 127 of of 1939. On 9-7-1942, a decree declaring the title of Najma to her share in the tenure and a preliminary decree for partition were passed in that suit. On 9-8-1942, Khodaija obtained delivery of possession of the tenure through Court on the basis of her purchase in November 1940. On 26-2-1943, Najma died. On 10-4-1943, the appellant filed a petition in Title Suit No. 127 of 1939 praying for substitution in place of Najma on the ground that before her death Najma had made an oral gift of her share to him. On 21-4-1943, the Court passed an order substituting the appellant as plaintiff in the suit in place of Najma. On 14-6-1943, a final decree was passed in the suit. The appellant was allotted 19.54 acres of land out of the tenure. On 25-6-1943, the appellant obtained possession of the land dispossessing Khodaija. Thereafter, Khodaija instituted Title Suit No. 126 of 1944 against the appellant and others for a declaration that the decrees passed in Title Suit No. 127 of 1939 were fraudulently obtained and were not binding upon her. The trial Court dismissed the suit, on appeal, the first appellate Court decreed the suit and a second appeal was disposed of by a compromise in these terms:

(2.) Thereafter, the appellant instituted the present suit against Khodaija and others praying for a declaration of his title to the aforesaid land. His case is that the suits instituted by the Maharaja of Dumraon were not rent suits and the sales in execution of those decrees were not rent sales, inasmuch as all the sharers of the tenure were not impleaded as parties to those suits, the share of Najma in the tenure now represented by the suit land was not affected by the sales, and by an oral gift she gave the land to the appellant. The trial Court decreed the suit. On first appeal, the High Court dismissed the suit. The appellant now appeals to this Court by special leave.

(3.) The appellant rests his claim of title to the land upon an alleged oral gift by Najma. Khodaija disputes the factum and validity of the gift. In rejoinder, the appellant contends that by the doctrine of lis pendens Khodaija is constructively bound by the final decree passed in Title Suit No. 127 of 1939 in the presence of her predecessor-in-title, Latafat and that decree conclusively declared his title to the land on the basis of the oral gift by Najma. Khodaija gives a twofold answer to this contention. She says that (1) by the decree in Title Suit No. 126 of 1944 she was held not to be a party to Title Suit No. 127 of 1939 and she is therefore, not bound by the decree passed in that suit, and (2) by the order of the High Court dated 24-1-1949 and the final order of the Munsif dated 28-6-1949 passed in the proceeding for restitution under S. 144 of the Code of Civil Procedure it was finally declared that she was not bound by the decree in Title Suit No. 127 of 1939. These contentions of Khodaija are sound and should be accepted. The compromise decree in Title Suit No. 126 of 1944 provided that Khodaija's name be expunged from the category of defendants in Title Suit No. 127 of 1939, and in other respects the decree in that suit would stand. The purpose of the compromise decree was that Khodaija's name should be expunged from the array of parties in Title Suit No. 127 of 1939, so that she would not be bound by the decree in that suit either actually or constructively. On a construction of this decree, the High Court held on 24-1-1949 in the proceedings for restitution that Khodaija's claim for restitution fell within the purview of S. 144 of the Code of Civil Procedure and that "as a result of a compromise, the decree was set aside as against her." By his final order dated 28-6-1949 the Munsif directed restitution on the basis of this finding. In Mahijibhai vs. Manibhai, AIR 1965 SC 1477, this Court by a majority held that an application for restitution under S. 144 of the Code of Civil Procedure is an application for execution of a decree. The principle of res judicata applies to execution proceedings. It follows that Khodaija is not bound by the decree in Title Suit No. 127 of 1939 and is entitled to re-agitate all the questions in issue in that suit.