MOHAMED ESUF ROWTHER Vs. SULTAN ABDUL KADAR

JUDGEMENT

(1.) This is a suit to recover possession of certain lands-The parties are Muhammadans. It is necessary to make this clear at the outset, because in dealing with, the parties contentions in the Courts below, there has been some confusion of mind caused by reference to self-acquired property and even to stridhanam (see paragraph 27 of the District Munsiff's Judgment in O.S. No. 38 of 1915).

(2.) The plaintiffs are the widow and children of Sheik Muhammad Bava Rowther. Sheik Muhammad Rowther had one brother, who is the 1 defendant, and four sisters. There has been previous litigation on the subject of the suit property. Sheik Muhammad Rowther brought a suit O.S. No. 15 of 1905,to recover the same lands from the 1 defendant on a plea of trespass in which he alleged that the properties were in plaintiffs possession but that it was necessary to have them delivered to him through Court to avoid any further dispute. The defendant took oath in that case and the plaintiff's suit was dismissed. Another suit O.S. No. 38 of 1915, was brought by the daughters of Isabibi Ammal, one of the sisters of Sheik Muhammad, and the 1 defendant. That suit was dismissed on a finding that the property was the exclusive property of Sheik Muhammad.

(3.) Both the Courts below have held that the result of the second suit was to negative the right of the sisters of any share of the property and to enhance the shares of Sheik Muhammau and the first defendant. The plaintiffs have been given a preliminary decree for partition of the suit properties into two equal shares. I am of opinion that both the judgments are wrong. This suit does not purport to be a suit for partition of property between co-owners. The cause of action is stated to be the claim of the 1 defendant in O.S. No. 38 of 1915 to absolute right in the suit property, and the relief asked for is 1hat the plaintiffs 6/8ths share should be made over to them. It its rot alleged that the plaintiffs have obtained possession of the property at any date subsequent to the 10 of November 1905 when the 1 suit (O.S No. 15 of 1905) for possession of this property was dismissed and that they lave since been dispossessed. As regards the plaintiffs title to sole possession of the property, the decision in O.S. No. 35 of 1905 is res judicata as between them and th0 defendant Muhammed Esuf. The mere assertion if title in O.S. No. 38 of 1915 by a co-defendant will not give rise to any cause of action if the property was at that time in the defendants possession. The present suit, if it be regarded as a suit to obtain possession against a trespasser, is barred by reason of the prior suit, O.S No. 15 of 1905 upon the same title--vide Muhammad Rowther V/s. Abdul Rahman Rowther 1923 Mad. 257. If it is to be alleged that in the prior litigation the plaintiff asked for too much and therefore his suit was dismissed and that his representatives are now at least entitled to 6/8ths or some other smaller share of the property, then they are equally barred, because Sheik Muhammad should have pleaded in that suit that, if he was not entitled to a decree for the whole property, be should at least be given a decree for his 6/8ths share. That principle is clearly established by the decision just quoted.