LAKHAN LAL JHA Vs. JIWACH JHA

JUDGEMENT

(1.) This is a second appeal on behalf of the defendants first-party from the decision of the learned Subordinate Judge of Darbhanga reversing that of the Munsif of Samastipur in a suit for a declaration that the sale deed, dated 12-11- 1938, executed by defendant 3 in favour of the defendants-first party, appellants in this Court, was not binding on the family of which the plaintiff was a member.

(2.) It appears that the common ancestor, Jairam Jha, had three sons, Earn Sarup, who is defendant 4 in this suit, Sitaram Jha whose son Sukhdeo Jha is defendant 5, and Adhik Lal Jha, who is defendant 3 in this suit. The plot in question, namely, plot No. 1424, along with other plots, had been acquired in the year 1910 in the name of Adhik Lal Jha, defendant 3. It is now common ground that Adhik Lal is not a member of the joint family of which the plaintiff claims to be a member. It also appears that there was a title suit, No. 8 of 1941, in respect of this very plot of land instituted by the plaintiff's father, Ram Sarup, and other members of the family for a declaration that the disputed plot was joint family property, which defendant 3 had no right to sell in its entirety, and that the plaintiff's two thirds share in that plot was not affected by the sale deed executed by defendant 3 in favour of the defendants-first party. It is not absolutely clear whether or not the plaintiff in the present suit was a party; but this much is clear that he was a junior member who was in his minority at the time the previous suit had been instituted. The defendants-first party appellants, who contested the previous suit also, claimed the entire plot on the ground that it was the exclusive property of defendant 3; who also was a defendant in that suit, and that he was entitled to convey that plot to the contesting defendants. The suit was contested up to the appellate stage, and it was held by both the Courts concurrently that the plot in question was the exclusive property of defendant 3 and that the plaintiffs had failed to prove their interest in the same. That suit ended in July 1943. That may be characterized as the first round in this litigation. The second round began in February 1944, when the present plaintiff who is the son of the leading plaintiff in the previous suit claimed that the sale deed executed by defendant 3 in favour of the defendants first party did not affect the two third interest of the family, inasmuch as Adhik Lal, the vendor, could not have conveyed more than this one- third interest in the plot.

(3.) The suit was contested again by the defendants first party chiefly on the ground that the previous decision between the parties was res judicata, and that, at any rate, the plot was the exclusive properly of defendants who could have conveyed a valid title to the defendants first party.