SRI KUBER SAHEB Vs. PHUNNAN RAI

JUDGEMENT

(1.) This is a plaintiff's appeal and arises out of a suit brought by him against the defendants for possession over the property described in the plaint and for mesne profits. The plaintiff brought the suit as a mahant and chela of Darshan Das. The. plaintiff's allegation was that the property in dispute belonged to the math of which he was the mahant, that it had been unlawfully transferred by mahant Sheo Raj Das and that the transfer made to the defendants respondents were void and illegal. The plaintiff's predecessor Darshan Das brought a suit in respect of the same property against Bikramajit Rai and Gobind Rai, predecessors-in-title of the other defendants on the same allegations on which the appellant has brought this suit. This property along with the other property had been transferred by Sheo Raj Das mahant to Mt. Sobhagi by deeds dated 21 February 1911 and 10 March 1919, and a compromise dated 28 October 1914. Mt. Sobhagi sold half of the property which is now in dispute to Bikramajit Rai and Gobind Rai since deceased and the other to two other persons. Darshan Das who was mahant and had succeeded to Sheorajdas brought a suit for possession over the whole of the property challenging the sale made by Mt. Sobhagi.

(2.) The learned Subordinate Judge in whose Court the suit was brought dismissed the suit finding that Darshan Das was not the chela of Sheo Raj Das and that the property in dispute was not endowed. An appeal was filed by Darshan Das. During the pendency of the appeal Gobind Rai had died. The learned District Judge decreed the appeal reversing the findings of the lower Court. Ultimately in the Letters Patent appeal this Court held that the appeal pending in the Court of the District Judge had abated in respect of half of the property which had been sold to Bikramajit Rai and Gobind Rai. The suit of Darshan Das was decreed in respect of the other half of the property. The result of the abatement of the appeal pending in the District Judge's Court was that Darshan Das suit against half of the property which was sold to Bikramajit Rai and Gobind Rai and which is now in dispute remained dismissed. On the death of Darshan Das the present plaintiff brought this suit in respect of half of the property in respect of which the former suit of Darshan Das had been dismissed alleging that Darshan Das had colluded and fraudulently got the suit dismissed in respect of the property in dispute. The point of collusion and fraud was not pressed in the trial Court. On the other hand, it was conceded by the appellant that there was no fraud. The trial Court recorded a finding that there, no fraud was practised in the former suit and dismissed the suit holding that it was barred by Section 11, Civil P.C. The plaintiff filed an appeal and the learned Subordinate Judge upholding the decision of the trial Court dismissed the appeal. In this appeal the only question is whether the former decision bars the present suit under Section 11, Civil P.C.

(3.) As already stated the ground of fraud taken by the plaintiff in his plaint was dropped in the trial Court and the trial Court recorded a finding that no fraud had been practised. No ground of collusion or negligence was taken by the plaintiff in his grounds of appeal filed in the lower Court. The plea of collusion was also thus dropped by the plaintiff. Negligence was never pleaded by the plaintiff. In the absence of proof of any collusion or fraud the decision of the former suit will be bind ing on the present plaintiff. In Prosunno Kumari V/s. Golab Chand (1875) 2 I.A. 145, the respondents on 27 February 1852, and 25 July 1854, obtained two decrees against the sebait of an idol upon his bonds for the repayment of moneys alleged therein to have been borrowed for the service of the idol and the expenses of the temple. Both decrees directed that the debt should be paid by the sebait personally, or else realized from the profits of the debut tar lands. In a suit by the appellants as sebaits in succession to the judgment-debtor to set aside the said decrees, and to have the debuttar property released from attachment issued in execution thereof, it was held that the decrees, being untainted by fraud or collusion, and having been passed after the necessary and proper issues had been raised and determined, are entitled to the force due to judgments of competent Courts, and are binding on the succeeding sebaits, who form a continuing representation of the idol's property. This case governs the present case on all fours. As already stated no collusion or fraud of the plaintiff in the former suit has been proved. Consequently the decision in the former suit bars the present suit under Section 11, Civil P.C., and is binding on the present plaintiff. There is no force in this appeal. It is therefore ordered that the appeal be dismissed with costs.