SYED ABID HUSAIN Vs. MUSAMMAT ASUDA

JUDGEMENT

(1.) One Khadim Hussain married twice. Abid Husain is his son by the first wife. Asuda Bibi is his second wife. Her son by him was Ata Hussain. He died in her life- time, leaving a son Raza Husain and a daughter Abadi. In 1908, Khadim Husain instituted a suit against Asuda Bibi, Raza Hussain and Abadi for a declaration that he was in possession of the property which stood in the name of Asuda and which she by a deed of gift, dated the 23 of March 1907, transferred to defendants Nos. 2 and 3. The defence of Abadi was that Khadim Husain was originally the owner of the property, that he made a gift of it to Asuda in lieu of her dower, who held possession for more than 12 years and that the suit was, therefore, barred by limitation as well as by Section 42 of the Specific Relief Act. The Court of first instance in its judgment, dated the 5 of September 1908, came to the conclusion that the claim was barred by limitation as well as by Section 42 of the Specific Relief Act. At the end of the judgment, the learned Munsif says: In any case the title passed to defendant No. 1 and that the plaintiff has now no title left. I am informed that the decree passed on the basis of the judgment already referred to became final between the parties.

(2.) Abid Husain, as an heir of Khadim Husain, instituted the suit, out of which this appeal arose, for the redemption of the mortgage alleged to have been executed by Khadim Husain in favour of Asuda Bibi. Both the Courts came to the conclusion that the judgment of the learned Munsif, dated the 5 of September 1908 in Suit No. 138 of 1908, operated as res judicata. The learned District Judge towards the end of his judgment says: But even on that authority [Shib Charan Lal v. Raghunath 17 A. 174], I hold that this second suit is barred. The question of limitation was the first issue necessary to consider in this case. No declaration of title could be made in a suit barred by time. If the plaintiff proved on being challenged that he was in possession within 6 years, then alone could the issue be tried whether he was in possession at the date of the suit. The finding of the Court on the first issue that plaintiff was out of possession for more than 12 years would be fatal to the title of the plaintiff to maintain a suit for possession and thus the finding as to title was also directly in issue."

(3.) The plaintiff comes here in second appeal and it is contended by his learned Vakil that the suit is not barred by the doctrine of res judicata. The contention of the learned Vakil is perfectly sound. What was in question in that suit was the title of Khadim Hussain as an absolute owner to the property. His title as a mortgagor was never raised or adjudicated upon. An adjudication upon the title of a person as an absolute owner is very different from an adjudication upon his title as mortgagor. Had the former suit been for possession, there might have been some ground for saying that as the plaintiff omitted one of the grounds of attack, his suit under Explanation IT, Section 13, of the Civil P. C., was barred. But as that suit was for a declaratory decree only and as the case law of this Court is that the suit for a declaration of title does not bar a subsequent suit for possession, see Akbar Khan V/s. Turaban 5 A.L.J. 637 at p. 640 : A.W.N. (1908) 252 : 4 M.L.T. 444, that contention could not be raised. I, therefore, set aside the decrees of both the Courts below with costs and remand the case under Order XLI, Rule 23, to the Court of first instance through the lower appellate Court for trial on the merits.