RAMCHANDRA DHONDO KULKARNI Vs. MALKAPA NARSAPA DEVARE

JUDGEMENT

(1.) The facts in this second appeal are somewhat complicated, but we propose to refer only to such of them as are necessary for the decision of the point with which we are now concerned. The original owner of this property was the 1st defendant Devare. In 1883, during the minority of Devare, his mother purported to sell it to the Bhojes, from whom Bavchi, in 1890, received it in exchange for another parcel of land. In 1891, by a simple mortgage Bavchi mortgaged the property to the present plaintiff, who is the appellant before us. In 1898, a suit was brought by Devare against his mother, Bavchi and the Bhojes, in order to set aside the sale by Devare s mother to the Bhojes. That suit was successful, and the result was that the sale to the Bhojes was set aside. In 1901, the plaintiff obtained a decree on his mortgage against Bavchi and the others. The property was put to sale and was purchased by the plaintiff with permission. But when the plaintiff proceeded to endeavour to get possession, he was resisted by Devare. Hence the present suit to recover possession.

(2.) The only question now before us is whether, in spite of the result of Devare s suit of 1898, it is open to the plaintiff now to show, if he can show, that the alienation by Devare s mother to the Bhojes was good in law, as, for instance, it would be, if the plaintiff could succeed in proving that the sale was for recognised necessity. It is contended against the plaintiff that it is not open to him to lead evidence in this sense for that he is bound by the decree against his mortgagor in 1898 by virtue of the provisions of Section 11 of the Civil Procedure Code. It is admitted that all the provisions of that section imposing the application of the doctrine of res judicata are satisfied against the plaintiff, except the provision which requires that the former suit must have been either between the same parties, or between patties under whom they or any of them claim. Admittedly the suit of 1898 was not between the same parties. The question.. therefore, is whether the present plaintiff can properly be said to "be claiming under his mortgagor Bavchi.

(3.) The argument against" him is that since he became the auction purchaser in 1894, the title to the whole estate rests in him without reference to any original distinction as to his position as mortgagee; that since, at the time of this suit, he was the owner of the property, he in this suit must be held to be claiming under the former owner, namely his mortgagor Bavchi. The answer, however, to this argument seems to us to be afforded by a rather closer consideration of the principle upon which Section 11 is based. As we understand it, that principle is that there must be between the parties in the earlier and the later suit some privity. In the particular case before us that privity would be privity of estate : in other words the principle comes into operation only if in the earlier litigation the estate in controversy was efficiently represented.