GANPATRAO YADORAO PANDE Vs. NAGORAO VINAYAKRAO JOSHI

JUDGEMENT

(1.) THIS is a defendant's appeal arising out of a suit for possession of a 0-6-2 2/3 share in mauza Rawanwadi in the tahsil and district of Bhandara. One Pemsha Gond once owned an estate known as the Rawanwadi Zamindari consisting of ten villages, of which Rawanwadi was one. He left three sons, each of whom inherited a 0-5-4 share in the Zamindari. The genealogical tree is given in the judgment of the lower Appellate Court, Ganpatsha and his brothers Anantsha and Daulatsha, who represented half the eldest branch, inherited a 0-2-8 share or 0-0-l0 2/3 pies each. The youngest branch came to an end with the death of Mohansha in 1900, and it is the plaintiff's case that Mohansha's share of 0-5-4 devolved on Ganpatsha by virtue of a registered will dated 20th November 1894, so that Ganpatsha thus became the owner of a 0-6-2 2/3 share in the Zamindari Mohansha's share was mutated in the name of Ganpatsha. At an imperfect partition of Rawanwadi and other villages of the Zamindari in 1910 Ganpatsha was held entitled to a 0-6-2 2/3 share, and in the settlement that followed in 1916-17 Ganpatsha was again recorded as having a 0-6-2 2/3 share in Rawanwadi. On 21st January 1915, Ganpatsha and his sons mortgaged a 0-6-2 2/3 share in Rawanwadi and Tekepar, another village in the Zamindari, to the plaintiffs, who brought a suit in 1930 to enforce their mortgage and purchased the mortgaged property at the ensuing Court auction in 1932. When however they attempted to take possession of the share in Rawanwadi. they were resisted by the defendant Pande. Hence the present suit.

(2.) THE defendant's case is that there was a private partition in 1897 at which the zamindari was divided as follows: Mohansha and Ganpatsha got a 0-16-0 share in. Tekapar; Kisansha, Manwarsha and Pitam-sha got a 0-16-0 share in Khursipar and Kodamendi; and in the other seven villages, including Rawanwadi, Anantsha and Daulatsha got an 0-8-0 share and Dinkarsha got the other 0-8-0 share. On 24th January 1912 Anantsha and Daulatsha executed a registered sale deed of their share in the Zamindari in favour of the Jakatdar family who sold it in 1918 to the defendant Pande. In the sale deed of 1912, Anantsha and Daulataha purported to sell a 0-2-8 share in all the villages of the zamindari, stating that they really owned a 0-2-8 share and Ganpatsha owned a 0-5-4 share, originally Mohansha's share, but that owing to the fraud of Ganpatsha, he had got himself recorded as having a 0-6-2? share and they were recorded as having a 0-1-9? share. They went on to add that there had been a private partition at which an 0-8-0 share in seven villages, as mentioned above, had been allotted to them, and that if the co-sharers admitted this partition then the vendees would be entitled to an 0-8-0 share in these seven villages instead of a 0-2-8 share in all the villages. In 1922, after the death of Ganpatsha and Anantsha, Pande successfully sued Daulataha and the representa-tives of Ganpatsha for an 0-8-0 share in these seven villages including Rawanwadi and obtained possession of Rawanwadi in 1932: vide Ex. P. 29. The lower Courts have held that there was no partition in 1897 as alleged by the defendant Pande. In the suit brought by Pande against Daulatsha and the representatives of Ganpatsha in 1922, it was held that there was such a partition, but that suit was instituted after Ganpatsha had mortgaged his share in Rawanwadi to the plaintiffs and the lower Courts have held that the plaintiffs are therefore not bound by the decision in that suit. That view is, in my opinion, correct on this ground that the estate which has already vested in a mortgagee cannot be represented in, or adjudicated upon, in a subsequent litigation to which he is not a party; for the simple reason that a decree of Court in such cases can neither create new rights, nor take away existing ones, but can only enforce the rights as they stand between the parties, and in enforcing such rights cannot go beyond the rights of the parties to the litigation - Per Mahmood J., in Sita Ram v. Amir Begam ('86) 8 All 324 at p. 336.

(3.) THE lower Courts' finding that there was no such partition as alleged in 1897 is clearly a finding of fact, but the appellant seeks to challenge that finding on the ground that certain evidence has been wrongly excluded. One such piece of evidence is the statement made by Sadasheo Rao as a witness in the previous case, Ex, D-9. Though there is no evidence to show that Sadasheo Rao is dead, it was so assumed in the lower Appellate Court without protest from the plaintiffs. Assuming he is dead his statement would be admissible under Section 33, Evidence Act, if the previous suit was "a proceeding between the same parties or their representatives-in-interest", i. R., if the representatives of Ganpatsha can be said to have been the representatives of Ganpatsha's mortgagees. The representatives of Ganpatsha denied the partition of 1897, as the plaintiffs now deny it. Their Lordships of the Privy Council held in Krishnayya v. Rajah of Pittapur AIR 1933 PC 202 at pp. 206 and 207, that this section covers not only cases of privity of estate and succession of title, but also cases where both the following conditions exist, viz., (1) the interest of the relevant party to the second proceeding in the subject-matter of the first proceeding is consistent with and not antagonistic to the interest therein of the relevant party to the first proceeding ; and (2) the interest of both in the answer to be given to the particular question in issue in the first proceeding is identical.