GOSWAMI BISHAMBHAR LAL Vs. GOSWAMI BRIJ RATAN LAL

JUDGEMENT

(1.) The appellant was the plaintiff in the suit which has been dismissed by beth the Courts below on the ground that it is barred by the rule of res judicata. The Huit was in respect of a house and the allegation of the plaintiff briefly was that the house had beon mortgaged with possession to one Had ha Govind in the year 1846 and that the rights of the mortgagee now vested in the plaintiff and defendants 4 to 7. Defendant 4 is the father of the plaintiff appellant and defendants 5 to 7 are his cousins and are members of the joint Hindu family to which the plaintiff and his father belonged, it was further alleged on behalf of the plaintiff that in the year 1921 a suit, being Suit No. 115 of 1921, had been brought by defendant 1, Goswami Bisheshar Lal, against a number of persons among whom was Madhusudan Lal, grandfather of the plaintiff, claiming, among other reliefs, possession over the house in question on the ground that the defendants of that suit wore not entitled to its possession and that the plaintiff of that suit, Goswami liisheshar Lal, alone was entitled to that house as the sole reversioner to the estate of the husband of one Mt. Hulsa Manji. In that suit, the plaintiff alleged, Madhusudan Lalji did not set up his title to the house under the mortgage deed of 1846 either through ignorance or through gross negligence and that Madhusudan Lal having failed to protect the rights of the plaintiff and the other members of the family in that litigation, the decree which was eventually passed in favour of Goswami Bisheshar Lal in that suit for possession over this house was not binding on the plaintiff. It was further alleged on behalf of the plaintiff that the right to redeem the mortgage of 1846 had now been extinguished by lapse of time. On these allegations the plaintiff filed the suit for a declaration that the decree in Suit No. 115 of 1921 was not binding on him and that therefore defendants 1 to 3 (defendants 2 and 3 being. transferees from defendant 1 were not entitled to obtain possession over the house in execution of the decree in Suit No. 115 of 1921. A relief for possession was subsequently added as defendants 1 to 3 obtained possession over the house after the plaint, had been filed.

(2.) The only defence with which we are concerned is the one based on Section 11, Civil P.C. It was pleaded on behalf of defendants 1 to 3 that the right which vested in Madhusudan Lal and the other members of his family under the mortgage deed of 1846 was a matter which might and ought to have been made a ground of defence in, the former suit, namely Suit No. 115 of. 1921 and should be deemed to have been a matter directly and substantially in issue in that suit within the meaning of Expl. 4 to Section 11 of the Code. It is this defence which has found favour with the Courts below. The trial Court relied on Expl. 6 as well for reasons to be presently stated. The judgment of the lower Appellate Court is not a very satisfactory one and we have had to go through the entire record in, order to ascertain the correct facts for ourselves. It appears that the house in question formed part of the estate of Sadhu Lal who was the husband of Mt. Hulsa Manji. Apart from this house, Sadhu Lal was also entitled to certain rights to perform the seva and puja (service and worship) in a certain temple and to appropriate the offerings for certain periods in the year. On Sadhu Lal's death, Mt. Hulsa Manji came into possession of his estate which included the rights of sewa and puja and the house in dispute as mentioned above. The Suit No. 115 of 1921 was brought by defendant 1, Goswami Bisheshar Lal, in respect of the estate of Sadhu Lal. He impleaded 35 Goswamis as defendants and the trial Court in its judgment in the case? before us observes that it was common ground that. the Suit No. 115 of 1921 had been instituted against 35 persons as representing the 38 families and only the managers of the families were impleaded as defendants, and each manager represented the, family to which he belonged.

(3.) The case of Bisheshar Lal in that suit was that the parties to that suit were the descendants of one Goswami Damodar Dasji and that among the descendants of Goswami Damodar Dasji there was a custom of exclusion of daughters, daughter's sons and bandhus. The defence put forward by Madhusudan Lalji, the grandfather of the appellant, along with other defendants in that suit, was that the plaintiff was not entitled to the exclusive rights which he claimed because there was a custom by which the parties were beund to the effect that whenever any person died without leaving male issue or a widow, the rights of seva and puja that he enjoyed, and his other estate devolved "upon his male relations directly descended from the common ancestor like the members of a joint Hindu family." It was further pleaded that no regard was paid to nearness or remoteness in degree. It was held in that case that the custom sot up by the defendants had been established so far as the right to seva and puja at the temple was concerned and Bisheshar Lal's suit was dismissed so far as it related to the rights of sewa and puja claimed by him. It was however held that the defendant's case was not established in respect of the succession to the house in question and Bisheshar Lal's suit for exclusive possession over it was decreed.