ZAHARIA Vs. DEBI

JUDGEMENT

(1.) The question for our determination in this appeal is one of the application of the rule of res judicata. The appeal has been laid before a Bench of three Judges owing to the recent decision in Damodar Dass V/s. Sheo Ram Dass 29 A. 730 : A.W.N. (1907) 245 : 4 A.L.J. 587, which is in conflict with the earlier decisions of this Court.

(2.) The appeal arises out of a suit for preemption. The defendants Deba, Musammat Kesar and Musammat Jawitri on 9 of August 1907 sold certain zamindari property in the village of Newari to Bhuri Singh and two others. Thereupon two rival suits for pre-emption were instituted in the Court of the Munsif of Ghaziabad, one by Manphul, which was No. 1404 of 1908, and the other by the appellant Zahariya; which was No. 1405 of 1908. By order of the Court, Zahariya was made a defendant in suit No. 1404 and Manphul was made a defendant in suit No. 1405 with the object of having their respective rights determined. For corvenience sake both suits were tried together without objection by the parties. Issues were knit and amongst others the following: "Has Zaharia, rival pre-emptor, a preferential right against the plaintiff (i.e., Manphul); and if not, have both rival pre-emptors equal rights." One judgment was delivered in the two suits, which was placed on the record of suit No. 1404; a copy being placed on the record of suit No. 1405. By this judgment the suit of Zaharia dismissed and the suit of Manphul was decreed. A decree in each suit was passed. Zaharia filed an appeal in suit No. 1405 but did not appeal against the decree passed in suit No. 1404. When his appeal came on for hearing the time for appeal against the decree in suit No. 1404 had expired and the preliminary objection was raised to the hearing of the appeal, namely, that it was barred by the decree passed in suit No. 1405. It will be observed that it was necessary for the determination of suit No. 1404, that the Court should find whether or not Zahariya had a preferential right, or any right, to pre-empt ns against Manphul. The lower appellate Court allowed the preliminary objection and dismissed the appeal. The learned District Judge in his judgment observes: It is obvious that even under the provisions of Rule 33, Order XLT. I could not set aside the decree in Manphul's favour to which Zahariya was a party. Thus if Zahariya's appeal were decreed there would be in existence two contradictory decrees. Manphul has, I have ascertained, already paid in the money and secured the right of pre-emption over the property, if Zahariya's appeal were decreed, to which of the two, Manphul or Zahariya, should a Court award the pro-perty?" Against this decree this second appeal has been preferred.

(3.) In the case of Chhajjii V/s. Shso Sahai 10 A. 123 which is a case on all fours with the present, the question before us was considered. In that ease two rival Suits for pre-emption were instituted in each of which each pre-emptor was made a defendant in the other suit. The suits were tried together upon the same evidence and were disposed of by a single judgment but by separate decrees. In one of the suits the pre-emptor obtained a decree in the terms of Section 214 of the former Civil P. C.. In the other the pre-emptor obtained a decree subject to the condition that in the event of the first pre-emptorfailing to execute his decree, the second pre-emptor should be entitled to execute it. There was no appeal against0 the decree in the first suit. The second pre-emptor appealed from the decree in his own suit upon certain grounds. It was decided in that case by Straight and Brodhurst, J.J., that the appellant, if he wished to get rid of the decision regarding the first pre-emptor's preferential right, should have appealed against the first pre-emptor's decree, and that that decree having become final the question between the two pre-emptors could not be reopened on appeal from the second pre-emptor's decree. This decision was followed without, so far as I am aware, a note of dissent in a number of cases upto the time of the ruling in Damodar Das V/s. Sheo Ram Das 29 A. 730 : A.W.N. (1907) 245 : 4 A.L.J. 587.