KRISHNA BEHARI ROY Vs. BROJESWARI CHOWDRANEE

JUDGEMENT

(1.) THIS was a suit brought by the Appellant, claiming to be the heir of Goursoonder Roy, to set aside an adoption of the Respondent Bunwari Lall, alleged to have been made by the widow of Goursoonder Roy. One of the defences set up by Bunwari Ball and by his mother, who was joined in the suit as Defendant, was that the question of the validity of the adoption of Bunwari Lall had been already decided in a former suit, to which the present Appellant Krishna Behari Roy was a party. An issue was raised upon that defence. Now it appears that a former suit had occurred which was of this nature : Bunwari Lall had brought an action against some putneedars who claimed under putnee leases granted by his adoptive mother. The ground on which he sought to set aside the leases was that she had exceeded her power in granting them, inasmuch as she had only a widow's estate. It is not necessary to state more respecting the object of that suit. An issue was raised in it upon the question whether Bunwari Lall had been validly adopted. The present Appellant and Plaintiff Krishna Behari Boy intervened in that suit, upon the ground that he was the heir of Goursoonder Roy, and, as the heir, had a right to intervene to dispute the title of Bunwari Lall as his adopted son. It does not appear very clearly at what period of the suit that issue was raised-whether before or after Krishna Behari Roy intervened-but undoubtedly it was raised, and is in substance the same as the issue raised in the present suit. The issue was tried, and the Principal Sudder Ameen found against the intervener and in favour of the adoption. He also found in favour of the putneedar, that the putnee could not be set aside. The putneedar having a decision in his favour was, of course, satisfied by that decree, but Krishna Behari Roy being dissatisfied with the finding upon the issue as to the adoption, appealed to the Civil Judge. On this appeal the decision of the Principal Sudder Ameen was affirmed. Again he appealed from the Civil Judge to the High Court, which, after fully hearing the case upon the issue of adoption, affirmed the decisions of the Courts below. There exists, therefore, a final and complete judgment upon the issue raised either at the instance of Krishna Behari Roy, or which he adopted, on the very question which he seeks again to raise in this suit.

(2.) BOTH the Courts below have held that the present suit is barred by reason of the judgment in the former one. The ground of the present appeal is that they are wrong, inasmuch as, it is said, that the case does not come within Section 2 of Act VIII. of 1859. Now the section is this :

(3.) A decision of the High Court of Bengal has been referred to, the case of Sheikh Rahmatulla v. Sheikh Sariutidla Kagchi 1 Beng. L.R. F.B. p. 61, as having a contrary tendency. All their Lordships desire to say of it is that, as reported, it does not appear to be consistent with their judgment in the former appeal to which they have referred, nor with their opinion in the present case. The decision is of so recent a date that they desire to say no more upon it.