RAGHUBAR DAYAL Vs. BIBI KULSUMUNNISSA

JUDGEMENT

(1.) THE plaintiff-respondent, Bibi Kulsumunnissa, instituted a suit against Ram Chander and Lachhman Prasad for possession over a plot of land in the town of Danpur on the ground that she was the zamindar and that they as trespassers were building upon it. Ram Chander and Lachhman Prasad pleaded that the buildings were being erected by their cousin, Dambar Lal, who was consequently impleaded. THE defence of Dambar Lal was that the plot of land was the ancestral property of himself and his family but it was held between the parties that he was a trespasser and liable to ejectment. When Mt. Kulsumunnissa sought to execute the decree against Dambar Lal, his nephew, Raghubar Dayal, offered resistance which gave rise to proceedings under Order 21, Rule 97. It was ultimately held that Raghubar Dayal could not be ejected in pursuance of that decree. THE plaintiff then instituted a suit for possession against him and the question arose whether the decisions in the previous suit against Dambar Lal were res judicata.] THE Court below have held that they were. It has been found as a fact that Raghubar Dayal and Dambar Lal were members of a, joint Hindu family and Raghubar Dayal was a minor at the time when the constructions were being made and the original suit was proceeding in the year 1933. It is now urged that, in the first instance, Raghubar Dayal was not properly represented by Dambar Lal in the previous suit and that there can be no question of res judicata. It is said that Dambar Lal made several applications in the course of the previous suit in which he asked that Raghubar Dayal should be impleaded and consequently it should be held that he did not represent Raghubar Dayal. Those applications and the orders passed upon them have not been made available to me and I can base no conclusion upon them. THE learned Judge of the lower appellate Court, who mentions them, seems to have attached no importance to them.

(2.) THE second point raised is that this present suit would be barred if it were held that Raghubar Dayal was sufficiently represented in the suit against Dambar Lal. It seems to me that there is a misapprehension upon this point. THE reason why the decisions against Dambar Lal would be res judicata against Raghubar Dayal are found in Expln. 6 to Section 11, Civil P.C. For the purposes of that section alone it shall be deemed that Raghubar Dayal was claiming under Dambar Lal. It does not follow that he would be considered as a party to the previous suit for the purposes of Section 47, Civil P.C., and that no suit could lie against him. I have been referred to the case in Kulsumunissa V/s. Raghubar Dayal ( 40) I.L.R. (1940) All. 87 but that does not help the appellant. It was a case between the parties arising out of execution proceedings and the learned Judge, who held that the application against Raghubar Dayal on account of his having interfered with the possession was rightly dismissed, was careful to say that his decision would not affect the question of res judicata in the subsequent suit. I have no doubt that the Courts below were right. Raghubar Dayal and Dambar Lal had exactly the same interest. THEy raised the same defences. THEy are members of a joint Hindu family and Raghubar Dayal was a boy at the time when the buildings were erected and the previous suit was instituted. THEre is no force in this appeal and I dismiss it with costs. Leave to appeal is refused.