TALARI KAVOLI NAGADU Vs. VISWANATHAM PEDDA GOVINDAPPA

JUDGEMENT

(1.) Transfer of Property Act relates only to immoveable property should not make us blind to the consideration that the legal principle underlying it might appropriately be applied to moveable also in cases where the aliened of the moveable is proved to have had notice of the pending litigation at the time of the alienation. It is not unconditionally extended to moveable because (among other reasons) it is considered that, while a pending litigation as regards immoveable might very well be presumed to be inquired into by intending purchasers pendent like, the same cannot be presumed as regards pending litigation about moveable, which usually pass from hand to hand and the litigation about which does not usually end in a decree for the return of specific moveable but in the award of pecuniary damages and compensation, either as the only relief or an adequate alternative relief. Reliance is further placed on the case of Niaz-ullah Khan v. Nazir Begam (2) by the respondents learned Vakil. In that case, the first litigation related to a house, and the second related to another distinct immoveable property which was sold pendents lite by the party in the first suit who was unsuccessful. Though a question was raised in the first case which involved the title of the unsuccessful party to the house and to all other properties (which she claimed as heir of a deceased person), the immoveable property in question in the second suit was not specifically mentioned and was not the subject of an issue which "directly and specifically" raised the title to it in the first suit, and in that view that case might also be distinguished. In the present case, the issue in the first suit directly and specifically raised the question of title to the very same immoveable property which is in dispute in this second suit, though the subject-matter of the first suit was only the crops raised on that property. I might be permitted to finally remark (with great deference) that some of the English cases which unduly whittle down the beneficent principles which underlie the doctrines of impendent and rest judicator by the rather subtle refinements need not be too much relied on by Indian Courts. In the result, I would hold that the decision in the former suit between the plaintiff s vendor and the 2nd defendant that the plaintiff s vendor had no title to plaint land and that the 2nd defendant is the owner thereof, is rest judicator against the plaintiff and in favor of the 2nd defendant in this case; and reversing the decree of the lower Courts I would dismiss the suit with costs throughout to be paid by the plaintiff to the 2nd defendant (appellant). Tyabji, J.

(2.) The question involved in this appeal is whether the suit out of which it arises is barred, by the doctrine of rest judicator (Section 11 of the Civil Procedure Code.)

(3.) The facts are , as follows:--There was a previous suit in which the question at issue was as to the right to manse profits accrued due on the land, that is, the subject-matter of the present suit. The present suit is for recovery of the same land. The f suit was dismissed, it having been held the the person in possession (the 2nd defenda in the present proceedings) had title to land, and was not liable to account for it profits to the then plaintiff. It is admitted that the plaintiff cannot succeed in the present suit unless it is decided that the 2nd defendant has no title to the land, in opposition to the decision in the first suit.