D. Chatterjee, J.:— One Durlavi inherited certain properties from her sons. She had 2 daughters: one of them died and the son of the deceased daughter being afraid of the whole property going to the other daughter induced Durlavi to execute 2 kobalas one in favour of the surviving daughter Pateswari in respect of ??? of the estate and the other in respect of ¾ths in favour of his wife and another. These kobalas are said to have been benami for the daughters' sons who had incurred debts.
The Plaintiffs' father having got a decree for money against the sons of Pateswari sold 4/7ths of the properties in execution and purchased it himself on the 22nd August, 1903 after a claim by Pateswari under sec. 278 of the Civil Procedure Code had been rejected. Pateswari then brought a regular suit for the establishment of her title under the kobala executed by Durlavi, but her suit was dismissed on the 4th of March 1904 and her appeal was dismissed on the 21st of June 1904. Durlavi was no party to this suit, but she deposed on behalf of her daughter and admitted the execution of the kobala and receipt of consideration. The sale to the Plaintiffs having been confirmed in the meantime, they applied for the registration of their names in the Collector's books and were opposed by Durlavi. Their application was refused, and they bring the present suit for the declaration of their title and recovery of possession on the allegation that the kobala executed by Durlavi was benami in the name of Pateswari in favour of her sons whose rights they had purchaser. Neither Pateswari nor her sons were made Defendants, the only Defendant being Durlavi who had suceeeded in defeating their application before the Collector.
Both the Courts below have decreed the suit, and Durlavi appealed to this Court. The present Appellants who are the sons of Pateswari have been substituted in place of Durlavi deceased along with her other grandsons. It has been contended on their behalf that the finding of the lower Appellate Court that Durlavi conveyed her right to Pateswari and bad no rights left of her own is not sufficient for supporting the decree that has been passed; that the decrees in the suit of Pateswari were not admissible against Durlavi and on the findings the suit should have been dismissed. It is conceded that the decrees in Peteswari's suit were not binding on Durlavi who was not a party to the same, but it is contended that they are admissible as title-deeds in favour of the Plaintiffs; that upon the finding of the lower Appellate Court the title passed to Pateswari and the decrees show that Pateswari had no title as against the Plaintiffs: the learned Vakil for the Plaintiffs-Respondents argues that when a Defendant pleads jus tertii it is open to the Plaintiff to show that he has good title as against the tertius, i.e, the third party set up by the Defendant. In the present case, however, the Defendant Durlavi did not plead the title of Pateswari, nor did the Plaintiffs claim title through Pateswari. The estoppel of Pateswari by the judgment in her suit does not create any title in the Plaintiffs as against the Defendant Durlavi. The Affect of acceding to the argument of the Respondent would be to give effect to two contradictory judgments: the judgment in Pateswari's suit decides that Pateswari had no title—that she was a benamidar: the judgment in the present case decides that title passed to Pateswari. I am not aware of any principle of law upon which this can be allowed. Whether Durlavi had any title or not, she is in possession and the Plaintiffs must make out their title in her presence before they can be allowed to oust her; they must prove in this case that the Appellants whose rights they purchased had the rights which they claim at the data of their purchase. The pleadings raised the question, and one of the issues framed was—Issue No. 5. Did the Defendant execute any document in favour of her daughter Pateswari as a benami transaction? Did any title pass thereunder to her grandsons? Is that document binding upon her? The learned Munsiff says— “The onus is on the Plaintiffs to prove the benami; this they have, not attempted to do”. Seeing the view that both the lower Courts have taken of the effect of the decree in Pateswari's suit, it is quite probable that the Plaintiffs were misled in adducing no evidence on the point. The best couise in the interests of justice therefore would be to give them an oppoitunity of adducing evidence on this pait of the case. This, however, must be on terms as it is through their mistake that the case has to be sent back. I therefore set aside the judgment and decree of the lower Appellate Court and send the case back to the first Court for re trial after giving the parties an opportunity of adducing further evidence. The Respondents must pay the costs of the Appellants both in this Court and in the lower Appellate Court within one month from their receipt of notice of the arrival, of the record in the Court of first instance. If the said costs are not paid within that time, this appeal will be decreed with costs. Notice of the arrival of the record in the Court of first instance will be given to the Appellants. The costs in the first Court will abide the result.
[On this appeal under sec. 15 of the Letters Patent.]
Babu Dwarka Nath Chackravarti (with Babu Jotindra Nath Lahiri) for the Appellants.—The Defendant set up title in a third person, and we have proved that the third person, viz., Pateswari had no title as against us. We have proved our title by showing that Durlavi had parted with her interest in favour of either Pateswari or her sons, and against both we have the judgment in the previous proceedings. I submit, thus the links in my title are established. The judgment inter alia is admissible in evidence. Though it is not res judicata, it has evidentiary value and we have nothing against it. See secs. 9 and 13, Indian Evidence Act, also Denomani Chowdhrani's case(3). I submit that the judgment supplies a link in the chain of titles at least as a conveyance would. I rely upon Ramamurti Dkora v. The Secretary of State for India in Council.
Babu Tarak Chandra Chackravarti for the Respondents.—The Plaintiff was bound to prove his title. There is no question of Durlavi's title.
[Jenkins, C.J:— The title of the Plaintiff is mixed up with your title.]
The Plaintiffs have not even attempted to prove whether Durlavi's kobala was merely a benami in favour of the sons of Pateswari.
[Jenkins, C.J:— But both Pateswari and her sons are bound by the previous proceedings: sec. 283 of the old Civil Procedure Code.]
[Babu Dwarka Nath Chackravarti, after judgment was delivered, submitted that the order of the Munsif dismissing the suit in the terms of the order of Chatterjee, J., should also be set aside.]
The following Judgment was delivered by—
Jenkins, C.J:— This is an appeal under cl. 15 of the Letters Patent from a judgment of Mr. Justice Digambar Chatterjee, whereby he reversed the decree of the lower Appellate Court and remanded the case for re-trial.
The Plaintiff claims to be a purchaser at an execution sale, and on the strengh of that purchase he has brought this suit for a declaration of his title to a 4/7ths share of Taluk No. 12437 of the Mymensingh Collectorate and also for possession.
The Defendant against whom the suit is brought is a lady named Durlavi Dassya who unquestionably was at one time entitled to the property in suit, and the Plaintiff's claim relates to a title alleged to be derived from her. In 1897, this lady executed a kobala which purported to be in favour of her daughter Pateswari. The land in suit was then attached in execution of a decree obtained against Pateswari's sons. A claim to the property was advanced by Pateswari, but it was rejected. Thereupon, Pateswari brought a suit as contemplated by sec. 283 of the Civil Procedure Code of 1882 making as parties the decree-holder and her sons. This suit failed in the Court of first instance, and on appeal the decree of dismissal was confirmed. It was in these execution proceedings that the Plaintiff bought the property in 1904. There was opposition offered to the Plaintiff by the Defendant Durlavi Dassya; so this suit has been brought.
The Defendant's contention was that she never parted with the property, and if she had established that, there would have been a complete answer to the claim. It has, however, been held by the lower Appellate Court that the kobala was executed by her in 1897, and that it was an effective kobala, and so the title passed out of her. The question then is whether the Plaintiff has made out a title to the property.
The lower Appellate Court has decided this in the Plaintiff's favour, and for that purpose has relied on the result of the litigation which commenced with the claim in the execution proceedings and terminated in the suit and on the orders and decrees in that litigation.
Mr. Justice Chatterjee appeared to think that was not a sufficient foundation for the Plaintiff's title, and so it was that he reversed the decree of the lower Appellate Court.
Before us it has been contended that this was erroneous, but the Defendant-Respondent maintains that it was correct.
There is a decision in a recent issue of the Indian Law Reports, Madras Series [Ramamurti Dhoia v. The Secretary of State for India in Council], which practically covers this case, for it was there decided in circumstances substantially resembling the present, that a party could not set up a title at variance with what had been determined in a previous litigation although his opponent in the suit then before the Court had not been a party to the previous litigation. ““And, in disposing of the case, it was said, “The question does not depend on the application of the doctrine of res judicata between the parties as expounded in sec. 13 of the Civil Procedure Code. That section does not cover all cases of estoppel by judgment. We must hold that the Plaintiffs cannot be permitted to prove that they are the owners of the land in question. They have therefore no cause of action”. Though I do not for one moment question the propriety of the result in that suit, I hesitate to act on that line of reasoning, and more particularly when I bear in mind what was said by the Privy Council in the case of Gokul Mandar v. Pudmanund Singh(2). Their Lordships there dealing with the topic of res judicata remarked as follows:— “They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.”
But I think there is another and sounder basis on which our decision must go in favour of the Appellant. It is not disputed before us that the decrees in the previous litigation are relevant as evidence, nor indeed can this be disputed when regard is had to the long line of authorities of which it will suffice for me to refer to the decision in Denomoni Chowdhrani v. Brojo Mohini Chowdhrani decided by the Privy Council, Brew v. Haren(4) and Davies v. Lowndes(5), so that what we have to see is whether, as they were admissible, they were not a sufficient basis for the judgment of the lower Appellate Court. Now, the Judge of the lower Appellate Court seems to me to have perceived with clearness that there was not a res judicata as between the parties to this litigation, but the learned Judge says, and I think correctly, that as between the patties to the previous litigation the decrees were binding. That appears to me to be a correct view of the law, and I may here refer not inappropriately to sec. 283 of the Civil Procedure Code of 1882, which says that “the party against whom an order under secs. 280, 281 or 282 is passed may institute a suit to establish the right which he claims to the property in dispute, but subject to the result of such suit, if any, the order shall be conclusive”. The result of the former suit we know was that the claimant's alleged right was negatived. So then we have this result that as between the decree-holder, Pateswari, and her sons there has been an adjudication by Court, which affirms the right of Pateswari's sons, and negatives the right of Pateswari. Why that should not be, in the circumstances of this case, cogent evidence I fail to see. Indeed the Defendant herself has not made any suggestion in the course of this litigation as to how things stand as between Pateswari and her sons. Her contention throughout has been that the title did not pass away from her. So we have this result that as against the adjudication in favour of Pateswari's sons, there is no evidence of any sort or any contention brought in rebuttal of the result of that litigation, and the decree in which in resulted. It appears to me that in these circumstances, and having regard to the facts with which we have to deal in this case, the result of that litigation is at least as cogent against the Defendant as would have been an instrument of transfer executed by Paeswari, the ostensible owner, in favour of her sons. I wish to make it clear that in the view I take, I cannot regard the decree in the previous litigation as amounting to res judicata which would bar all possibility of evidence on the part of the Defendant. It would, I conceive, have been open to the Defendant to show that, notwithstanding that decree, there were circumstances either vitiating the result of that litigation or affecting its result so as to prevent its operation in favour of Pateswari's sons. But we have nothing of that sort in this case, as, we merely have on one side the evidence furnished by the orders and decrees in the previous litigation, and nothing by way of rebuttal of that, on the other.
In these circumstances, I think, the necessary conclusion is that we must hold that the Judge of the lower Appellate Court had evidence which justified the conclusion at which he arrived, and it was erroneous to have interfered with his decree.
We must accordingly set aside the judgment of Mr. Justice Chatterjee and restore the decree of the lower Appellate Court, and the Appellants must get their costs of both appeals in this Court.
It has been brought to our notice that there has been an order by the Munsiff consequent upon the judgment of Mr. Justice Chatterjee. The order necessarily is of no effect and inoperative.
Appeal allowed.