HARIHAR BHAGAT Vs. MOSSFIR PATHAK

JUDGEMENT

(1.) The controversy in this case centres round a portion of Khata No. 207 of village Mow Gopalpur, having in all an area of 2.58 acres. In the survey Record-of-rights. it was recorded in the name of one Raj Kumar Tewari, father of defendant No 3. It appears that on the 5th December, 1930. this Raj Kumar Tewari executetl a registered deed of gift in respect of this khata in favour of his Bhagina, Musafir Pathak, who has been impleaded in the present case as defendant No. 1. But, for some reason or other, the name of this defendant No. 1 was not thereafter mutated in the Sarishta of the landlord Rani Bhuvaneshwari Kuer with the result that in the year, 1934, Rani Bhuvaneshwari Kuer instituted a rent suit for the arrears of this holding against the recorded tenant, viz . Ra.j Kumar Tewari and not against the donee aforesaid in whose favour the deed of gift was executed viz., Musafir Pathak. This rent suit was ultimately decreed and that decree was put into execution in Execution case No. 267 of 1938. In course of that execution case, this khata was auction-purchased by the landlord on 18th November, 1938. Thereafter, on ths 7th December. 1940, the landlord settled a part of the khata, which is the subject-matter of dispute in the present case, with one Rambachan Bhagat, pro forma defendant No. 4 who is the father of the plaintiff. Subsequently, in the year 1951, this settlement by the landlord, made in the name of Rambachan Bhagat was challenged by defendant No. 1, the donee, under the aforesaid deed of gift in Title Suit No. 34/61/11/52. At the trial the suit was dismissed; but in appeal which was numbered as Title Appeal No, 56/64/154/64, the suit was decreed. Against that decree passed by the Appellate Court, ther" was a second appeal taken to this court, which was numbered as 1086 of 1964. It is said that this second appeal was filed by two persons, Rambachan Bhagat, father of the plaintiff, and Sambal Bhagat, uncle of the plaintiff, who, it is said, was the then Karta of the plaintiffs' family. It, however, so happened that while that second appeal was pending in this Court for disposal, Sambal Bhagat died and, thereafter Rambachan Bhagat, father of the plaintiff, gave up the pairvi of the case, with the result that the second appeal was dismissed for non-prose cutlon on the 25th February. 1958. Thereafter, the present suit was filed on the 14th May, 1958. by the plaintiff, who is the appellant here, for a declaration that the decree passed in Title Suit No. 34/51/11/52 by the Additional Munsif, IV. Gaya, and Title Appeal No. 56/54/154/54 by the Additional Subordinate Judge, I. Gaya, were null and void, and did not in any way affect the plaintiff's title to the property in suit. According to the plaintiff, the decree passed in Title Suit No. 34/51/11/52 and Title Appeal No. 56/54/154/54 were brought about as a result of collusion, and as such, were vitiated by fraud. Further, the plaintiff also challenged in the plaint the validity of the deed of gift executed on the 5th December, 1930. by Raj Kumar Tewari in favour of Musafir Pathak, defendant No. 1. This suit was hotly contested by defendant No. 1. The plea set up by defendant No. 1, in substance, was that the deed of gift, dated the 5th December, 1930, was valid and genuine and as such, binding on the heirs and successors of Raj Kumar Tewari. The other important plea raised was that there was no fraud or collusion practised in obtaining the decree in the aforesaid title suit and the title appeal The trial Court negatived both the pleas set up by the contesting defendants and decreed the suit. On appeal, that judgment has been reversed and on both the points, the lower appellate court has held in favour of the defendant No. 1. Accordingly the suit has been dismissed by that court. Hence this appeal by the plaintiff.

(2.) In my opinion, so far as the validity of the deed of gift is concerned, that is now concluded in second appeal. Further in view of the fact that the decree passed in the aforesaid Title Appeal No. 56/54/154/54 now. in my opinion, operates as res judicata, the suil can be dismissed on that simple ground alone, without going into the question of genuineness and validity of the deed of gift, dated the 5th December, 1930. Mr. Lalnarayan Sinha appearing for the appellant, has. in order to get over the bar of res judicata. raised two importanl points (1) that the Title Suit No. 34/51/11/62 having been instituted in the court of the Munsif, any decree passed by him cannot operate as res judicata in the present suit which was instituted in the court of Subordinate Judge; and (2) that in any view of the matter, the plaintiff was not represented in the said title suit, and as such, any decree passed therein cannot be held to be binding on the plaintiff. In my opinion, there is no substance in either of these two contentions. The lower appellate court has elaborale ly gone into the question of the value of the property involved in the present case and has found that the property as mentioned in the plaint before the trial Court was given an exaggerated value and, if real value had been taken into consideration, the suit should have been instituted in the court of Munsif. and not in the court of the Subordinate Judge. Further it is well established that if as a result of any rise in the value of the property the suit is subsequently instituted in a higher, court, that by itself cannot save the operation of the rule of res judicata as laid down in Gokaran Prasad Singh v. Chholey Narayan Singh, AIR 1951 Patna 595: Jeevantha v. Hanumanlha, AIR 1951 SC 9 and Bibi Nazma Khaloon v. R. P. Sinha, AIR 1954 Pal 43. Therefore the first contention fails.

(3.) In support of the second contention, the submission made by Mr Sinha. is that at least two members of the family were there on the record, viz. Rambachan Bhagat and Sambat Bhagat. and in that view of the matter, it cannot be validly held that title suit No. 34/51/11/52 was brought againsl the family in the representative capacity through the Karta of the family, viz. Sambat Bhagat In law it is now well established that in the case of a joint family governed by the Mitakshara School of Hindu law the family should be represented either by the Karta or by all the coparceners of the family. But in the present case, the reason why Ranbachan Bhagat was brought on the record of the aforesaid Title Suit No. 34/51/11/52 was not that he was a junior member of the family, but because the settlement had been made in his name and the defence put up in that suil by Rambachan Bhagat was that he was only a farzidar of the joint family of which the Karta was Sambal Bhagal Therefore. Rambachan Bhagat was brought on the record not as a junior member of the family but as a person in whose name the farzi settlement stood; and so far as the family was concerned, that was represented exclusively through the Karta, viz Sambal Bhagat. That being so, there is no substance, in the contention that in that litigation the entire family, through the Karta ambat Bhagat, was not properly represented. Therefore this part of the submission made by Mr. Sinha also fails.