MT NAWASI BEGAM Vs. MTDILFAROZ BEGAM

JUDGEMENT

(1.) This appeal arises out of a suit for possession of certain immovable property together with mesne profits. The property belonged to one Afzal Shah, who died on the 9 of October 1881, leaving as his heirs a nephew Mansur Shah and a widow Zamani Begam. The former was entitled to three-quarters of the property and the latter to one-quarter. The widow retained, possession of the whole property in lieu of her dower-debt. The nephew assigned half of his share to, Muhammad Zaman Khan and Usman Shah, and then, together with his transferees, instituted a suit against Zamani Begam on the 20 of April 1892, for possession of his share. Zamani Begam asserted her right to retain possession until her dower-debt had been discharged. The amount of the dower-debt and of the profits received by the widow were disputed, but by the decree of the High Court, dated the 2nd of June 1896, it was finally decided that the amount of dower-debt was Rs. 50,000, and after making allowance for the profit received by Zamani Begam from the estate, and for the debts which she discharged, the plaintiff's got a decree for possession of the share, conditional on the payment of Rs. 35,223, minus the profits accruing from the date of the decree of the District Judge up to the date of delivery of possession. The plaintiff failed to pay anything and so they remained out of possession.

(2.) This suit was instituted on the 18 of January 1919, by Dilfaroz Begam, a daughter of Mansur Shah, and one of his heirs. The Defendants 3-9 are also heirs of Mansur Shah and have been impleaded as pro forma defendants since they have not joined in the suit. The plaintiff claims a 7/72 share of the property as an heir of Mansur Shah. The Defendants 1 and 2 are the representatives of Zamani Begam and are in possession of the property. The Defendants10-29 are the representatives of the transferees, Muhammad Zaman Khan and Usman Shah. The suit was resisted by the Defendants 1 and 2 on a number of pleas, which were repelled by the trial Court. In the result the plaintiff's claim was decreed subject to the payment of Rs. 107 minus the profit accruing from the plaintiff's share in the property between the 30 of June 1921, up to the date of recovery of possession. The Defendants 1 and 2 have raised three points before us in appeal. Firstly, it is argued that the suit was barred by the rule of res judicata. The contention is that the decree obtained by the plaintiff's predecessor-in-interest in 1896 bars the present suit, and the decree itself is no longer enforceable.

(3.) The Court below, relying mainly upon the decision of this High Court, in the case of Maina Bibi V/s. Wasi Ahmad [1919] 41 All. 538, held that the present suit was not barred by reason of the fact that the plaintiff's predecessor-in-interest had obtained a decree for possession of the said property in 1896 on condition of paying a certain sum. In the case of Maina Bibi a suit was brought against the widow, who was in possession in lieu of dower, by some of the heirs of her husband in 1902 and was decreed on condition of payment of a sum of Rs. 25,000 within a certain time; in default of which the suit was to stand dismissed with costs. The sum was never paid. In 1915 the plaintiffs, who had sued in 1902, again brought a suit for possession alleging that in the meantime the dower-debt had been satisfied and that they were entitled to possession without payment of anything. It was held that the suit would not be barred by the principle of res judicata as the it was only for adjustment of accounts since the decree in the suit of 1902. The points in issue in the suit of 1902 were he amount of dower, the rate of interest and the sum payable by the plaintiffs before obtaining possession, up to the date of the decree. None of those points were in issue in the suit of 1915. Also it was held that the plaintiff's failure to pay the sum necessary for recovering possession under the decree in the suit of 1902 did not extinguish their right to recover possession at a future date by a separate suit. The decision of this High Court in Maina Bibi's case [1919] 41 All. 538 was upheld on appeal by their Lordships of the Privy Council, whose judgment is reported in Maina Bibi V/s. Vakil Ahmad 47 All. 250. Their Lordships remark (at page 260): The suit out of which this appeal arises only asks for adjudication as to the account since 1908. The right to get immediate possession of land at the date when a suit to recover it is, in fact, instituted, is a wholly different thing, a wholly different res, from the right to recover it, at some future time and possibly under wholly altered circumstances. The non-fulfillment of the condition attached to the decree in the earlier suit only extinguished the right to recover immediate possession as actually claimed, and could not and did not, in their Lordships opinion, extinguish the right of the plaintiffs to the inheritance of, or their rights to recover possession of, the lands at some future time.