SUDEHAIYA KUMAR Vs. RAM DASS PANDEY

JUDGEMENT

(1.) This is an appeal by the defendants from a judgment of a Civil Judge allowing an appeal and decreeing the suit of Ram Dass plaintiff.

(2.) The property in dispute admittedly belonged to the last male owner Jangi who died on 10-6-1901, leaving his widow Mst. Deobarta, his sister Mst. Sudami and his mother Mst. Bageshra. On his death, Mst. Deotoarta and Mst. Bageshra obtained mutation in their favour in respect of the property left by Jangi. Mst. Bageshra died in 1911, and on her death, the name of Mst. Sudami was added. In 1912 a suit-was brought by the sons of Matadin for possession and, in the alternative, for a declaration that they were entitled to the property after the deaths of Mst. Deobarta and Mst. Sudami. Matadin was Jangi's grand-father's brother. His sons, who filed the suit, were Dudh Nath proforma defendant respondent, Sripat and Banwari. It was decreed only for the alternative relief. Subsequently Mst. Sudami died and on 6-5-1932 Mst. Deobarta made a gift of a substantial portion of the property in favour of her husband Ram Sewak defendant-appellant No. 2. Thereupon suit No. 155 of 1933 was instituted by Dudh Nath against Mst. Deobarta and Ram Sewak. Ram Das plaintiff-respondent first cousin of Dudh Nath was at that time a minor living jointly with, and under the guardianship of, Dudh Nath. Dudh Nath sought the relief of cancellation of the gift deed on behalf of himself and Ram Das. The suit was contested by Mst. Deobarta and Ram Sewak on various grounds and not on the ground that Dudh Naith was not entitled to sue because he was not the nearest reversioner of Mst. Deobarta and Mst. Sudami and that there was a sister of Mst. Sudami named Mst. Dudhaiya defendant-appellant No. 1 in existence. It was decreed by the trial court and Mst Deobarta and Ram Sewak filed an appeal. The appellate court' framed an issue whether Jangi left any sister Mst, Sudhaiya and remitted it to the trial court for its finding. It seems to have done this not on the basis of any plea, but on the basis of some statements made by witnesses of Mst, Deobarta and Ram Sewak suggesting the existence of Mst. Sudhaiya as another sister of Jangi, The trial court decided that Jangi left no other sister, but the appellate court upset the finding and held that Mst. Sudhaiya was a sister of Jangi, that she was a nearer heir of Jangi than Dudh Nath and Ram Das, and that consequently Dudhnath had no right to sue. The appeal was allowed and Dudh Nath's suit was dismissed; his appeal was dismissed by this Court in 1937. On 16-6-1941 Mst. Deobarta died Mst, Sudhaiya and Ram Sewak obtained mutation in their favour over the property in dispute. On 21-1-1942, Ram Das applied for mutation but his application was dismissed. Then on 5-7-1944 he instituted the suit giving rise to this appeal. It was instituted against the two appellants and also Dudh Nath who was arrayed as pro forma defendant. It was for possession over the property; it was pleaded that Mst. Sudhaiya was no sister of Jangi, that the gift by Mst. Deobarta in favour of Ram Sewak was invalid, that Ram Das and Dudh Nath were the nearest reversioners and that Ram Das was not bound by the decision in suit No. 155 of 1933 because he was not a party to it and it was a collusive suit conducted negligently by Dudh Nath. The trial court dismissed the suit holding that the decision in suit No. 155 of 1933 operated as res judicata and that Ram Das was not entitled to inherit the property in the presence of Mst. Sudhaiya, who was a nearer heir. On appeal the lower appellate court held that the previous decision did not operate as res judicata because Ram Das was not a party to the suit, that Mst. Sudhaiya was not a sister of Jangi, that Ram Das and Dudh Nath were the nearest reversioners of Jangi and that consequently Ram Das was entitled to a decree for himself and on behalf of Dudh Nath.

(3.) A decision in a previous suit is res judicata in a subsequent suit brought by the same parties or between persons who claim under parties to the previous suit litigating under the same title, vide Section 11, C. P. C. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. In the previous suit No. 155 of 1933 Dudh Nath claimed the right to have the gift deed cancelled, expressly in common for himself and Ram Das. Ram Das was not impleaded probably because he was a minor and living jointly with, and under the guardianship of Dudh Nath. There is nothing whatsoever to indicate that it was not a bona fide claim made by Dudh Nath for himself and Ram Das. As the subsequent events show Mst. Sudhaiya was not a sister of Jangi and the nearest reversioners were Dudh Nath and Ram Das. There was no reason for suspicion of any collusion between Dudh Nath and Mst. Deobarta and Ram Sewak against whom the suit was brought. Ram Das was interested in the right to have the gift deed cancelled exactly as much as Dudh Nath was; they were equally related to Jangi. If one was the nearest reversioner, so was the other and if one was entitled to inherit his property, so was the other. Consequently Explanation VI applied and Ram Das must be deemed to be claiming under Dudh Nath, who litigated in the earlier suit, "and under Section 11, the decision in the previous suit would operate as res judicata and prevent Ram Das from reagitating the same question now.