BINDESHRI PERSHAD Vs. BAFZAL KHAN

JUDGEMENT

(1.) This and the connected Appeal No. 233 of 1919 are appeals by the plaintiffs in a suit brought for recovery of possession of certain properties. Preliminary objections are taken to the hearing of both these appeals by the learned Vakil for the respondents. As regards Second Appeal No. 233 of 1919, the plea is that at the time when the appeal was filed, a copy of the first Court's judgment did not accompany the memorandum of appeal and no application was ever made to get the time extended, with the result that no proper appeal was ever filed at all. As to Second Appeal No. 232 of 1919 it is urged that after the dismissal of the other appeal it will he barred by the principle of ret res judicuta. We agree that having regard to the amendments of Order XLI, Rule 1 and Order XLII, Rule 1 of the Civil Procedure Code, which this Court has made in exercise of the powers given to it under Section 122 of the Code, a memorandum of second appeal without a copy of the first Court's judgment is an incomplete document and is not properly preferred. The appeal must accordingly be dismissed. This is the view which has been accepted in a resent Fall Bench case, See Bhairon Ghulam V/s. Ram Autar Singh 63 Ind. Cas. 338-[Ed.].

(2.) In order to appreciate the plea of res judicata it is necessary to stats the fasts of the case first. One Mir Hidayat Ali was the owner of the property in dispute. He died leaving a widow one Musammat Imaman Bibi, his mother Nuran Bibi and three sisters as his legal heirs and representatives. Musammat Imaman Bibi appears to have entered into possession of the estate in lieu of her dower debt. On the 31 of August 1908, the widow Musammat Imaman Bibi purported to transfer the entire estate of her deceased husband Mir Hidayat Ali, including her one-eighth share in it, in favour of Babu Afzil Khan and the recital of the sale deed shows that she alleged that daring the lifetime of her husband the whole of the property had been transferred to her absolutely in full payment of her dower debt. One of the sisters of Mir Hidayat Ali sued to recover possession of the estate against Babu Afzal Khan, the transferee, but the transferee, inter alia, pleaded that without payment of a proportionate amount of the balance of the dower debt her suit should not be decreed. His contention, however, was repelled by the Courts below and their judgments were upheld by this Court in Second Appeal No. 1246 of 1914, decided on the 3 of November 1914. On the 28 of April 1916 the present suit was filed by the plaintiffs, as transferees from one of the sister and a daughter of the third. After the institution of the suit Babu Afzal Khan appears to have taken a second sale-deed from Musammat Imaman, the widow of Mir Hidayat Ali, on the 3 of September 1917 of her dower debt and a right to retain possession of the estate in lien of that debt. Fortified by this new sale deed he filed a written statement, pleading inter alia that without payment of a proportionate amount of the balance of the dower debt the plaintiffs were not entitled to a decree for the recovery of their shares. The Court of first instance decreed the suit for 15 sihams out of 39 sihams, and dismissed the suit with respect to the remaining 5 sihams out of the 20 sihams claimed. The plaintiffs, however, were not called upon to pay any part of the dower debt at all. Two appeals were filed against that decree. One by the defendants who urged that the decree ought to be subject to the payment of a proportionate amount of the balance of the dower debt, and also challenged the decree as regards the 15 sihams and the other appeal by the plaintiffs with respect to the 5 sihams as to which the suit bad been dismissed, These two appeals were disposed of by the District Judge by separate judgments. He dismissed the plaintiff's appeal but partly allowed the defendants appeal, and made the decree conditional on the payment of the amount which he found due from the plaintiffs to the defendants.

(3.) It is clear that the points which were raised in the two appeals before the learned District Judge were quite distinct and independent of one another. There was no common issue in the two judgments. These cases are not cases arising out of two separate suits which had been disposed of by one common judgment containing a common finding on any particular disputed matter. The decree of the first Court is still being challenged in Second Appeal No. 232 of 1919 and the judgment of the lower Appellate Court in the other case has not decided the point raised in this second appeal, which, in our opinion, is not barred by the principle of res judicata simply because Second Appeal No. 233 of 1919 fails as not having been properly filed.