NIRMAL SINGH Vs. ZAMIR UDDIN KHAN

JUDGEMENT

(1.) THIS is a second appeal brought by Nirmal Singh, defendant. The facts are as follows : Plaintiffs, Nathu and Mt. Nauhani, brought a suit against Mt. Basti Begum and other defendants and also against Nirmal Singh as pro forma defendant. Mt. Basti Begum, etc., were sued for arrears of rent by the plaintiffs who claimed that those defendants were the tenants of the plaintiffs. The plaintiffs set up the title of being maqruqadars of arazi mawruqa and Mt. Basti Begum claimed that she was the owner of the land in question. The suit was brought for arrears of rent in the Court of the Tahsildar and an issue was referred to the civil Court : Have the defendants any proprietary rights in the land in dispute? The Munsif held that the proprietary rights of Mt. Basti Begum were proved by judgments between the parties of the year 1896, that is between the predecessor of the plaintiffs, who was Nirmal Singh, the present appellant, on the one hand, and Mt. Basti Begum on the other. Certain receipts of rent on which the plaintiffs relied were held to be forgeries. The issue was returned to the revenue Court and the revenue Court dismissed the suit of the plaintiffs for arrears of rent. The plaintiffs did not file any appeal. On the other hand, Nirmal Singh filed an appeal in the Court of the District Judge in which he asked that the claim of the plaintiffs should be decreed with costs. He did not ask for any relief for himself. The learned District Judge held that Nirmal Singh did not now possess any right in the land and he could not maintain a claim for arrears of rent against the other defendants and that Nirmal Singh had no locus standi to appeal and his appeal was therefore dismissed.

(2.) THE question raised in second appeal is whether Nirmal Singh had or had not a right of appeal to the lower appellate Court. Learned Counsel for Nirmal Singh has failed to show any ruling where it has been held that a person in the position of Nirmal Singh in this case could bring an appeal in favour of the plaintiffs whose suit had been dismissed. Learned counsel argued that the case might be res judicata against his client on the question of proprietary right. It has been held in Malhi Kunwar V/s. Imam-ud-din (1905) 27 All. 59 that there will be no res judicata in the case of such a question arising between one defendant and another defendant because the parties were arrayed tan the same side in the previous litigation. We see no reason to differ from the opinion of the lower appellate Court that no appeal lay under the circumstances of the present case and accordingly we dismiss this second appeal with costs.