MOHAMMAD AHMAD Vs. ZAHUR AHMAD

JUDGEMENT

(1.) The question which arises in this appeal is whether the suit of the plaintiff is barred by the rule of res judicata. For the purpose of determining this question it is necessary to stats a few facts. One Karimullah died many years ago leaving a widow, Musammat Sabiunnissa, a son Nizamnddin and two daughters, Khurshed Jahan and Kaniz Fatma. Disputes arose between the heirs of Karimullah and a suit was brought by Khurshed Jahan, one of the daughters, for her share in the estate of Karimullah. That suit was compromised and a decree was passed on the basis of the compromise in 1868. According to the compromise and the decree, Khurshed Jahan relinquished her claim to the estate left by her father, and as to the property which was found by arbitrators in that case to be the property of her mother, Musammat Sabiunnissa, she also relinquished the rights the might acquire in that property upon the death of her mother. This relinquishment was for a consideration. As stated above, the terms of the compromise were embodied in a decree and the decree was passed as between Khurshed Jahan and her sister Kaniz Fatma as also the other heirs of her father. Khurshed Jahan is dead. Nizamuddin executed a sale-deed in favour of three persons, namely, the present plaintiff, Muhammad Ahmad, Mohammad Kasim and Mushtaq Ahmad. Muhammad Kasim having died, his son Hashmat Ali brought a suit in 1912, which was Suit No. 24 of that year, for possession of the property sold to his father by Nizamuddin as also a share of the property which he alleged had been inherited by him from Musammat Khurshed Jahan, who was his wife. In that suit several houses were claimed, The present plaintiff, Muhammad Ahmad, was made a defendant, because be was one of the purchasers under the sale-deed executed by Nizamuddin. The suit was for partition of the share which was claimed by Hashmat Ali and for possession. The case was tried and, in the end, the claim of Hashmat Ali was dismissed in respect of the property purchased from Nizamuddin on the ground that Nizamuddin had previously sold his interest in the property and had, therefore, no rights to convey it to the persons who obtained a sale-deed from him. As regards the property which was claimed by right of in heritance to Khurshed Jahan, the claim was dismissed on the ground that Khurshed Jahan had abandoned her rights in the property and, therefore, none passed to her heirs. Subsequently to the passing of this decree the present suit was instituted by Muhammad Ahmad, and he claimed the share Nizamuddin had sold to him under the tale deed to which we have referred above, and also a share in the property in dispute which he claimed to have inherited from his mother, Khurshed Jahan. The present suit relates to only one of the houses claimed in the previous suit.

(2.) The Court of first instance dismissed the suit on the ground of res judicata. It held that the matter was res judicata by reason of the decision in the suit brought by Hashmat Ali in 1912 and also by reason of the decree which was passed in 1868.

(3.) The lower Appellate Court affirmed the decree of the Court of first instance holding that the matter was res judicata in consequence of the decision in the previous suit brought by Hashmat Ali.