CH RUP NARAIN SINGH Vs. KISHUNI SINGH

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiffs claimed a sum of Rs. 80/-by way of contribution. The case of the plaintiffs was that khata No. 25 of village Nainpura belonged to defendants 3 and 4. Defendant No. 4 who was the mother of defendant No. 3, executed a rehan bond in respect of 13 bighas of the land in favour of the plaintiffs. Subsequently defendant No. 4 created another rehan in respect of 61/2 bighas of the same property in favour of defendants 1 and 2. Subsequently defendants 1 and 2 instituted a redemption suit. Suit No. 36 of 1945, and obtained a decree against the plaintiffs on the 27th August, 1946 for recovery of possession as Well as damages by way of mesne profits. The defendants obtained delivery of possession in Chait 1353 Fasli. In the meantime the rent of the holding had become due and the plaintiffs, who were in possession of another portion of the holding had to pay the entire rent off the holding for the years 1352 to 1354 Fasli. On the basis of these facts the plaintiffs claimed contribution. The trial Court dismissed the suit on the ground that the claim was barred by res judicata and also on the ground that the payment was voluntary. The lower appellate Court reversed the finding of the Munsif with regard to the voluntary nature of the payment, but the lower appellate Court held that the claim was barred by res judicata and it was the duty of the plaintiffs to have put forward their claim in the proceedings taken for mesne profits.

(2.) The argument presented by Counsel for the appellants is that the view taken by the lower appellate Court was wrong and the claim of the plaintiffs was not barred by res judicata. In support of this argument learned Counsel referred to four cases, namely, Draksharam Chandramouli v. Satya Narayana AIR 1926 Mad 1020 (A), Pichi Aiyar v. Subbarayar AIR 1915 Mad 1213 (B), Baidyanath Dutta v. Kanhailal Marwari, AIR 1939 Pat 264 (C) and Vithaldas Gulabdas Seth v. The Hyderabad Spinning and Weaving Co. Ltd., AIR 1923 Bom 24-(D). In our opinion, the principle of none of these cases is applicable to the present case. The reason is that the proceedings for mesne profits in the present case were proceedings arising out of a decree passed in a suit for redemption and in a case of this description the principle of res judicata applies so far as the claim for contribution is concerned. We consider that the present case falls within the principle laid down in the decision of the Madras High Court in Ameenammal v. Meenakshi AIR 1920 Mad 531 (E). It was pointed out in that case by Sadasiva Aiyar and Spencer, JJ. that where a transaction of mortgage had become fully ripened, so that the rights and liabilities of the parties could be dealt with by the Court before which the suit was brought in res-pect of that transaction, whether the suit was for foreclosure by the mortgagee or for sale by the mortgagee, or in the alternative for foreclosure or sale by the mortgagee, or for redemption by the mortgagor, all questions, including even claims for rent due on transactions inseparably connected with the mortgage, relating to the taking of accounts between the mortgagor and the mortgagee, ought to be decided in one and the same and in the very first suit, and no second suit could be brought by either party for any claim arising out of that same transaction of mortgage. To a similar effect is a decision of the Bombay High Court in the case of Vinayak Shivrao v. Dattatraya Gopal, ILR 26 Bom 661 (F). At page 667 Jenkins, C.J. stated as follows:

(3.) For these reasons we hold that the lower appellate Court was right in holding that the suit is barred by res judicata. We, accordingly, dismiss this appeal with costs.