SUNDAR LAL Vs. CHHITAR MAL

JUDGEMENT

(1.) THIS appeal arises out of a suit brought by several plaintiffs, who prayed that a decree might be granted them for recovery of possession by redemption of certain property set out in the schedule attached to the plaint. They also asked for mesne profits. The plaintiffs may be divided into representatives of two separate groups, and for the purposes of convenience the one group is termed in this judgment the Rupa group and the second group the Jhanda group. In this appeal we are concerned only with the Rupa group. Both the Courts below have held that their claim to recover possession by redemption is barred by reason of a suit namely, suit No. 125 of 1896, in the Court of the Subordinate Judge of Agra, in which one Jhadda and others brought a similar claim for redemption affecting the property the subject-matter of the present appeal against Chhitar Mal, who in both cases was arrayed as one of the defendants. The said Chhitar Mal is mortgagee in possession. The sole question with which we are concerned in this appeal is whether, as the Courts below have found, the present claim is barred by reason of the rule of res judicata. The lower appellate Court held that, for purposesof Section 13 of the Civil P. C., Jhadda's sons, who were not arrayed as plaintiffs in the suit of 1896, claim under their father and are consequently bound by the dismissal of that suit. The learned Judge holds that the sons of Jhadda acquired their title through Jhadda. THIS is not a correct view of the law. As pointed out in Ram Narain V/s. Bisheshar Prasad (1838) I.L.R., 10 All., 411, the Hindu son in a joint family becomes entitled by reason of his birth and in his own right, a right which he can enforce against his father, and he does not claim under his father within the meaning of Section 13 of the Civil P. C.. A person is said to claim under another when he derives his title through that other by assignment or otherwise. The result of this error on the part of the Judge is that we cannot decide the present appeal upon the findings recorded by the lower appellate Court. It is necessary for a right determination of the matters in dispute between the parties that we have findings by the Court below upon the following issues, namely: (1) In what capacity did Jhadda sue in suit No. 125 of 1896 in the Court of the Subordinate Judge of Agra? Did he claim the right to redeem in common for himself and his sons and others who were interested in the right of redemption; or did he claim only in his own behalf? (2) Whether any, and, if so, which of the present appellants were living at the date of the institution of the suit above named? (3) What are the respective shares to which the plaintiffs appellants are entitled in case their claims are not barred?

(2.) WE refer these issues for trial to the lower appellate Court and direct that Court to take such additional evidence as may be relevant. The Court will return its findings together with the evidence, and ten days will be allowed to either party to take objections to the findings if so advised.