ABDULLA Vs. KUNHAMMAD ALIAS AHMAD

JUDGEMENT

(1.) This is an appeal by defendants 34 to 42, 44, 45 and 52 and is directed against a preliminary decree passed by the Subordinate Judge at Tellicherry, for partition of properties which were found to belong to a Moplah Marumakkathayam tarwad called Adeelakath tarwad or which may be referred to as the tarwad, consisting of the plaintiff and of defendants 1 to 45 and 49. The plaintiff sued for partition and recovery of 1/47th share of 43 items of properties described in B schedule of the plaint. The chief defence put up by the appellants was, that items 2 to 43 of B schedule are not partible; as they belong to a tavazhi in the tarwad, called Unnintavide tavazhi, of the appellants, or shortly the tavazhi, and not to the tarwad. The court below has now found, that of these items, all, except items 2, 4 and 6, are partible; this was partly on the basis of the decision in a previous litigation, evidenced by judgment Ext. A3, rendered on appeal, by the Subordinate Judge, and confirmed by judgment Ext. A4, passed on second appeal by the Madras High Court, which was held to operate as res judicata. In holding so, the court below has failed to note what was so obvious, that the previous suit was instituted in the Munsiffs Court, which was not competent to entertain the present suit, which was instituted in the court of the Subordinate Judge. The learned counsel appearing for the plaintiff respondent, was therefore unable to support the view taken, that the appellants are barred by res judicata in their present contention; instead, he supported the finding on three contentions, first, that the previous decision is admissible in evidence under S.13 of the Evidence Act and is almost conclusive, secondly, that it serves to shift the onus of proof to the appellants to establish the title of the tavazhi to the properties concerned, and thirdly, that Ext. A4 contains a record of an admission made by the karanavan of the tavazhi relating to the acquisition of the properties, Which is now available to the plaintiff, to be used against the appellants.

(2.) The former suit was instituted by a female member of the tarwad, impleading its karanavan as the first defendant, and four of its senior members as defendants 2 to 5, claiming maintenance, from the first defendant personally, and out of the income of tarwad properties, which were not specified in the plaint. Defendants 3 and 4 who were members of the tavazhi, were described in the plaint in that case, Ext. B20, as living in Unnintavide, and as having no occupation or following no pursuit. While not opposing the claim for maintenance as against the tarwad, they contended, that the tavazhi properties ought not to be made answerable, and insisted, that the plaintiff do file in court a list of the properties, which according to her, belonged to the tarwad. Such a list was furnished later, being Ext. A1 or B24, in this suit. The first court dismissed the suit by Ext. A2, judgment; on appeal by the plaintiff, impleading the 3rd defendant, described as Anandiravan, in the tarwad presumably, and impleading none in the place of the 4th defendant who had died in the meanwhile, the Subordinate Judge came to the conclusion, that of the properties covered by the list, those specified by him in Para.15 of his judgment, Ext. A3, which were said to have been acquired in the name of the 4th defendant, were not liable to meet the plaintiffs claim, but that, the remaining properties which were in the possession of the first defendant, belonged to the tarwad and were so liable. The third defendant preferred a second appeal describing himself, again as Anandiravan, and by Ext. A4, the findings of the Subordinate Judge and the decree passed by him were confirmed. It may be, that under the law governing the parties, a karanavan need not be described as such in the plaint and the capacity in which he is sued, may be capable of being inferred from the frame of the suit or from the reliefs claimed or from other cogent circumstances. But when the plaintiff herself set out in Ext. B20, the reason for the impleadment of defendants 2 and 3 to be that they were the senior male members next in rank to the karanavan, and of defendants 4 and 5 to be that they were the senior female members next in rank to the plaintiff, and she did not allege, much less recognise, the existence of the tavazhi and of properties appertaining to it, and specifically wanted no relief, declaratory or otherwise, as against the tavazhi, there is no scope for an inference, that the 3rd defendant was sued as the karanavan of the tavazhi, all because be exercised a privilege which was open to any member of the tavazhi who may be impleaded, of setting up the title of the tavazhi to the properties in which he is interested. While Ext. A5 shows, that the 3rd defendant was the karanavan of the tavazhi, in the year 1934, our attention has not been drawn to any other material to show conclusively, that he was the karanavan during the period of the former litigation. A suit for maintenance by a member of the tarwad is one, which from its very nature, would ordinarily be brought against the karanavan of the tarwad, Chandu v. Raman, 11 Madras 378. We therefore come to the conclusion, that the tavazhi was not sued in the former litigation.

(3.) On the first of the contentions formulated above, it may be taken as settled by the pronouncements of the Supreme Court in Srinivas Krishna Rao v. Narayan Devji, AIR 1954 SC 379 and Sital Das v. Sank Ram, A.I.R 1954 SC 606, that the judgment in a previous suit, though not inter pares, is admissible under S.13 of the Evidence Act, in proof of a transaction or particular instance, in which the right in question was asserted and recognised or denied; it is therefore needless, to refer to earlier cases on the subject of admissibility of such judgments in evidence. But the finding of fact arrived at in the judgment on the evidence in the previous case, is not evidence of that fact in the later case, Kumar Gopika Raman v. Atal Singh, AIR 1929 In another case, the Privy Council observed, that the reasons upon which the judgment is founded are no part of the transaction and cannot be so regarded, nor can any finding of fact there came to, other than the transaction itself, be relevant in the present case, Gobinda Narayan v. Shamlal AIR 1931 PC 89 . It is unnecessary to multiply cases. Accordingly in Srinivas Krishna Raos case, the Supreme Court was prepared to treat the earlier judgment, only as an assertion of the right claimed, and in Sital Das v. Sant Ram, the court used the judgment, only to fill up the slight lacuna in the evidence, and to support the oral evidence. In Ram Lakhan v. Jai Upadhya, AIR 1929 Patna 749, the prior decree was held to be admissible under S.13 of the Evidence Act as corroboration of the oral evidence. It is difficult to think, that an assertion can be made the sole foundation for relief being granted by a court, Maharaj Sir Kesho Prasad Singh Bahadur v. Bahuria Mt. Bhagjogna Kuer, AIR 1937 PC 69 . If so, the finding in Ext. A3 confirmed by Ext. A4, could not be made the basis on which a decree can be granted in this case