POKHPAL SINGH Vs. CHHIDU SINGH

JUDGEMENT

(1.) This and the connected Appeal No. 50 of 1911 arise out of a suit brought by the plaintiffs-appellants for possession of shares in two villages, namely, Momaa Khurd and Sabra, and for certain house property situated in the former village. They also claimed a declaration that a decree obtained by the defendant Chhedu Singh against their father Rudra Singh, on the 19th of July 1908, and the proceedings held in pursuance of that decree are not binding on them, and are as against them null and void. Chhedu Singh, defendant, is the nephew of the plaintiff s father, Rudra Singh, being the son of his brother, Umrao. Chhedu Singh brought a suit against Rudra Singh for partition of zemindari property situated in the two villages mentioned above and also of house property. To that suit the plaintiffs were added as defendants. A decree was passed in favour of Chhedu Singh, declaring him entitled to a half share of the property claimed and for partition of the house property and costs were also awarded to him. For the realization of those costs, the decree was put into execution and a great part of the property, now in dispute, was put up to sale and purchased by Chhedu Singh himself. Subsequently, he sold that property to the defendants, Beni Singh and Sri Ram. Decrees for rent were also obtained by Chhedu Singh against Rudra Singh, and. in execution of those decrees, some property was sold and the defendant, Husain Ali Khan, purchased it. In 1907, the plaintiffs brought a suit against Chhedu Singh and the purchasers of the property, for a declaration that they were the owners of a five-sixths share in the property now in dispute, other than the shares in the village Subra; that the decree obtained by Chhedu Singh was fraudulent and not binding on them and that the sale of the property in execution of that decree could not affect their interests. This suit was dismiss fed on the 13th of January 1908, apparently under Section 102 of the Code of Civil Procedure, 1882, on the ground that the plaintiffs did not appear at the hearing and the defendants, who were represented, did not admit the claim. Subsequently, Rudra Singh died, and thereupon the suit out of which this appeal has arisen was brought by the plaintiffs. The main ground of the claim is that the plaintiffs were not properly represented in the suit brought by Chhedu Singh, and that the decree in that suit was not binding on them, and must be deemed to be null and void so far as they were concerned.

(2.) The Court below has held that as regards the five-sixths share claimed in the previous suit, the present suit is barred by the provision of Order IX, Rule 9 of the Code of Civil Procedure of 1908, which corresponds with Section 103 of Act XIV of 1882. As regards the remainder of the property, it granted the plaintiffs a decree for a part of their claim. The judgment of the learned Subordinate Judge is far from satisfactory, and it is not easy to follow all the reasoning by which it is supported. It is not, therefore, surprising that both the parties are dissatisfied with it and have appealed against the decree. The plaintiffs in this appeal contend that; the Court below is wrong in holding that a part of their claim is barred by reason a of the dismissal of the suit brought by them in 1907. They urge that the cause of action for the present suit is not the same as the cause of action for the former suit, inasmuch as at the time when they brought that suit, they were in possession of the property, and that before the institution of the present suit, they were dispossessed from it.

(3.) If, as the plaintiffs contend, they were not properly represented in the suit brought by Chhedu Singh in 1901, the decree in that suit would, as against them, be a nullity. This was so held in Hanuman Pershad v. Muhammad Ishaq 28 A. 137 : 2 A.L.J. 615 : A.W.N. (1905) 229. If, on the other hand, the plaintiffs were substantial parties to the former suit and were properly represented in it by a guardian, the decree in that suit is binding on them; and, so long as it is not set aside, they would not be entitled to maintain the present claim. Therefore, the question whether -the dismissal of the former suit operates as a bar to the present claim, would depend mainly on the determination of the further question whether in the former suit they were properly represented. If, as we have said above, they were not so represented, the decree as against them being a nullity, the claim for a declaration that it is a nullity is superfluous and the present suit would be unaffected by the fact that the former suit was dismissed.