9911796707
TMI Blog1884 (5) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... Behari Lal's conveyance was of prior date. In 1860 Rowshun Ali sued Behari Lal for possession of 5 annas of the dearah in suit and for reversal of the order of the revenue authorities; settling it with Behari Lal. The Court on that occasion came to the conclusion that Behari Lal had purchased only Syedpur Mosleh, and that under his conveyance he had acquired no right to dearah Afzulpur. On the other hand, the Court held that under the conveyance executed in favour of Rowshun Ali, he (Rowshun Ali) had acquired a title in the aforesaid dearah. That suit was accordingly decided in favour of Rowshun Ali. In the year 1866, on the occasion of another temporary settlement, the question as to the right to receive malikana again came before the Collector, and the Collector, relying upon the Civil Court's decision in the: suit of 1860, refused to recognize Behari Lal's right to malikana, allowing Rowshun Ali's right to the share of the malikana. It is not shown on this record that Behari Lal or Rowshun Ali has, since the date of the Collector's robokari settling this malikana question, drawn the malikana in question. Behari Lal's right and interest in the property whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned vakil for the respondents has urged that the District Judge is in error in assuming without evidence that Rowshun Ali is the benamidar of Gopi Nath Chobey. He has further contended that even supposing that Rowshun Ali was the benamidar of Gopi Nath, the suit of 1860 would not preclude the plaintiffs from contesting the same matter in a subsequent suit with the real owner--Gopi Nath Chobey. We shall notice these two objections, taken before us by the learned vakil for the respondents, first. As regards the first objection, it appears to us that the cases cited in support of it do not at all bear him out. With the exception of the decision in Meheroonissa Bibee v. Hur Churn Bose 10 W.R. 220 none of the other cases really touch this point. As regards the decision in that case, the observation relied upon appears to us to be a mere obiter dictum. There the question was whether the benamidar alone was entitled to maintain the suit without bringing upon the record the beneficial owner. In the course of the decision upon this point one of the learned Judges who decided that case made some observations which no doubt support the contention of the learned vakil for the respondents. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recital in the decision of the Subordinate Judge in the proceeding under Section 55, Act VII of 1876, is any evidence upon this point or not, it is clear to us that the said recital, coupled with the fact that it is not contradicted by the plaintiffs in the plaint, is some evidence of the fact that Rowshun Ali is the benamidar for Gopi Nath. Therefore we think that this objection also must fail. 6. We now come to the grounds upon which the District Judge has overruled the plea of res judicata. The first ground taken by the District Judge is that the former suit was for possession of the dearah itself, and that no question of malikana was in issue. It seems to us that this ground is untenable. Substantially the same question is at issue in both these suits, viz., the proprietary right to the dearah in dispute. In the suit of 1860, if Behari Lal had succeeded in establishing his proprietary right to the dearah, the suit of Rowshun Ali would have been dismissed; so also in this case, if the plaintiffs can establish as against Gopi Nath Chobey, the appellant, their proprietary right to the dearah, the plaintiffs would be entitled to a decree. The substantial question is therefore id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... able to hold, in a suit which might be brought ten years hence, that a decision between the same parties to-day passed by a Munsif having full jurisdiction would not be res judicata ten years hence. The reasonable construction of the words in a Court of jurisdiction competent to try such subsequent suit seems to us to be that it must refer to the jurisdiction of the Court at the time when the first suit was brought, that is to say, if the Court which tried the first suit was competent to try the subsequent suit if then brought, the decision of such Court would be conclusive under Section 13, although on a subsequent date, by a rise in the value of such property or from any other cause, the said Court ceased to be the proper Court, so far as pecuniary jurisdiction is concerned, to take cognizance of a suit relating to that property. In this case, in the suit of 1860, there was no objection taken that the Munsif had no jurisdiction to entertain it, and therefore the parties being the same, it may be taken as conclusively decided by that suit as between them that the Munsif in that suit had jurisdiction to entertain it. The present suit relates to the same property; it is true that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of Rowshun Ali, adverse possession, so far as possession could be taken of an interest in Immovable property like the one in dispute in this case, was taken by Rowshun Ali. Upon this point the learned vakil for the respondents strongly relied upon a decision in the case of Rao Karran Sing v. Raja Bakar Ali Khan L.R. 9 IndAp 99. It was held in that suit that upon the facts found in the lower Court, Article 145 of the second schedule of Act IX of 1871, which corresponds with Article 144 of the present Limitation Act, was applicable; and their Lordships of the Judicial Committee further held that, with reference to the facts found in the case, adverse possession against the plaintiff had not been taken for more than twelve years. These facts were as follows: One Badam Singh was entitled to the property in dispute in that case and upon his death his widow took possession, Karan Singh, who was the appellant before their Lordships, brought a suit to turn the widow out of possession, upon the ground that Badam Singh had made him his heir-at-law. That suit was defended by the widow, and after her death the grandchildren of Badam Singh, Kharag and Budar Singh, were made parties to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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