MAHOMED IBRAHIM ABDUL RAHIMAN Vs. SHEIKH HAMJA MAHOMEDALLY

JUDGEMENT

(1.) In holding the present suit barred as res judicata by the previous suit No. 760 of 1906, the Courts below have mis-apprehended the nature of the two suits. The previous suit was for the redemption of a mortgage; the present is one in ejectment. In the former the plaintiff alleged that the defendant had taken the property now in dispute in exchange for another property held by him as mortgagee; and he sought to redeem it. The exchange by way of mortgage was held not proved and the suit was dismissed. It was a decision that the plaintiff had not proved the mortgage set up by him, and that, therefore, his suit for redemption did not lie. Now he sues on his title as owner to eject the defendant as trespasser. "The relative rights and duties of owner and trespasser on the one hand and of mortgagor and mortgagee on the other are wholly different, and failure in a suit of simple ejectment does not in our opinion in any way bar the plaintiff in a subsequent suit to enforce his right to redeem as mortgagor :" Shridhar Vinayak v. Narayan valad Babaji (1874) 11 B.H.C.R. 224. The converse of it was held by Westropp C. J. and Nanabhai Haridas J. in Govinda valad Shivaji v. Ganu valad Balaji (1876) P.J. 186. To the same effect is the Full Bench decision of this Court in Ravji v. Kaluram (1873) 12 B.H.C.R. 160. These were no doubt decisions under the Code of Civil Procedure of 1859, which did not contain such a provision as Explanation II to Section 13 of the Code of 1882. But this Court followed Shridhar Vinayak v. Narayan valad Babaji (1874) 11 B.H.C.R. 224. in Naro Balvant v. Ramchandra Tukdev (1888) I.L.R. 13 Bom. 326, a case under the latter Code. And the same provision is reproduced as Explanation IV to Section 11 of the present Code (Act V of 1908), which applies to the suit in this second appeal.

(2.) The lower Courts would appear to have proceeded on the decision of this Court in Guddappa v. Tirkappa (1900) I.L.R. 25 Bom. 189. in applying the rule of res judicata to the present case. But that decision rests on a different principle. There the first suit had been for possession claimed by the plaintiff as the surviving co-parcener in a joint family as against the defendant treated as a trespasser. Failing in that suit, the same plaintiff sued as reversionary heir, treating again the same defendant as trespasser. It was held that the second suit was barred, because having regard to Explanation II to Section 13 of the Code of Civil Procedure (Act XIV of 1882), in the previous suit he not only might but ought to have alleged his title as reversionary heir. Both the suits were in ejectment; in both the claim or title was that of owner; the only difference, as pointed out by Jenkins C. J. at the conclusion of his judgment, was in the source of the title alleged. That made no difference as to the nature of the two actions.

(3.) As observed by the Judicial Committee of the Privy Council in Kameswar Pershad v. Rajkumari Ruttun Koer (1892) L.R. 19 I.A. 234, the question whether any matter might and ought to have been made a ground of defence or attack in a previous suit must depend on the facts of each case, and one important test is, whether the matters in the two suits are so dissimilar that their union might lead to confusion. The matter involved in a suit in ejectment is essentially different from that involved in a suit for redemption. In the first place, where a person sues to eject he sues as owner of the property ; where he sues to redeem, he sues as owner of an interest in it, namely, the equity of redemption, and the defendant as mortgagee is sued as holding the property as security for the debt. Secondly,, in a suit for redemption, no question of title to the property is necessarily involved, because, if the mortgage set up by the plaintiff is proved and alive, the mortgagee cannot deny the mortgagor s title but must allow him to redeem and sue him separately on the question of title. That was held to be the law by this Court in Bapuji Narayen Sane v. Bapujirao bin Subhanrao (1873) P.J. 49 and in Santaji bin Patlu v. Bayaji bin Raghu (1876) P.J. 17. Nor can the mortgagor dispute his own right to mortgage and that for the reason that in a mortgage the mortgagor covenants that at all events he has a good title : per Lord Kenyon in Cripps v Reade (1796) 6 T.R. 607; see also Narayan Khandu Kulkarni v. Kalgaunda Birdar Patel (1889) I.L.R. 14 Bom. 404. If the mortgage is not proved, the suit fails, independently of the question of title.