TAMIZ-UN-NISSA BIBI Vs. SYED MOHAMMAD HUSAIN

JUDGEMENT

(1.) This second appeal arises out of a suit for possession brought by the plaintiff- respondent against the defendant appellant. The facts briefly are as follows: One Riyaz Husain mortgaged his property to the plaintiff in 1911. He died leaving three daughters and a son. The son falsely alleging a gift of the whole property, sold it to the plaintiff in June 1920 for Rs. 4,000. Of this sum Rs. 2,400 were set off against the money due on the mortgage, and the balance paid over. The consequence was that the plaintiff from holding as a mortgagee commenced to hold as a vendee. One of the daughters of Riyaz Husain, namely, Mt. Tamiz-un- nisa, brought a suit to obtain possession of one-fifth of the property on the ground that it was hers by inheritance from Riyaz Husain and that her brother had no right to dispose by sale of her one fifth share. She brought the suit in the Court of the Munsif, and was successful. It must be presumed that the suit, as brought by her, was within the competency of the Munsif to decide. The present plaintiff did not resist, the suit for possession on the ground that, even if the son of Riyaz Husain could not give him any title as vendee in one-fifth of the property, still he was entitled to fall back on his rights as mortgagee in respect of the one-fifth share and retain possession of the whole property.

(2.) This suit was brought by the plaintiff in the Court of the Subordinate Judge for the purposes of setting up this plea which he omitted in the other suit and to recover possession which he lost by the decree in that suit. The trial Court held that the first suit operated as res judicata. On appeal to the District Judge of Moradabad the latter upset its finding on two grounds. One ground was that Section 11, Civil P.C. could not be invoked, because there was no obligation on the plaintiff in the former suit to plead his right to retain possession as mortgagee. The second ground was that the section could not be invoked because the Munsif was not competent to try the present suit.

(3.) Both reasons appear to us to be incorrect. The District Judge thinks that the plaintiff was not bound to plead his position as mortgagee because such a plea was inconsistent with his plea that he had a good title as vendee. But the suit was substantially one for possession, and we have no doubt that the present plaintiff should have pleaded that, even if the sale of the daughter's one-fifth share was invalid, yet she could not recover possession until the mortgage on that one-fifth portion was paid off. He was bound to take this plea, if not in the original written statement at any rate in argument.