BHAGWAN DAS Vs. ROSHAN LAL
LAWS(ALL)-1980-7-34
HIGH COURT OF ALLAHABAD
Decided on July 18,1980

BHAGWAN DAS Appellant
VERSUS
ROSHAN LAL Respondents


Referred Judgements :-

MOOL NARAIN AND OTHERS V. MOHAN KRISHNA AND OTHERS [REFERRED TO]
TAMIZUM NISSA BIBI V. SYED MOHD. HUSAIN [REFERRED TO]
JAHANGIR V. JINARDAN AND OTHERS [REFERRED TO]
DURJATI SUBBAYYA V. ANANTARAJU NAGAYYA AND OTHERS [REFERRED TO]
AMRITSAGAR GUPTA VS. SUDESH BEHARILAL [REFERRED TO]
PANDURANG MAHADEO KAVADE VS. ANNAJI BALWANT BOKIL [REFERRED TO]
RAMKARAN SINGH VS. SM PARBATI KUER [REFERRED TO]
THAKUR DIN VS. SITA RAM [REFERRED TO]
LINGANGOWDA VS. BASANGOWDA [REFERRED TO]
MT RAM DEI VS. MTGYARSI [REFERRED TO]
SHAMAJI NARAYAN VS. GOVIND RANGACHARYA [REFERRED TO]


JUDGEMENT

R. S. Singh, J. - (1.)This is a plaintiffs' second appeal against the decree and judgment dated 20-8-1970 of the Additional District Judge, Bareilly, affirming that of the trial Court by which the plaintiffs' suit was dismissed. The suit giving rise to the present appeal was filed by the plaintiffs for recovery of possession after ejectment of defendant No. 1 from the accommoda tion in suit and for recovery of Rs. 294/- as mesne profits at the rate of Rs. 15/-per month. It was alleged in the plaint that the land shown by letters A B C D in the map attached to the plaint was the part of the land which originally belong ed to Roop Chand who died leaving behind him his six sons, namely, Moti Singh, Rewa Ram, Sobha Ram, Kewal Ram, Bindraban and Sita Ram. Out of them Rewa Ram died issueless. The remaining sons of Roop Chand had one fifth share each. On 11-8-20 Moti Singh executed a deed of his one fifth share 4o Durga Prasad, Chhidammi Lal and Misri Lal. They filed suit No. 626 of 1920 against Sita Ram son of Ram Singh and others. It was decided on 19-1-1922 and they were declared to have one fifth share therein. On 18-9-1920 the other three sons of Roop Chand, namely, Rewa Ram, Sobha Ram and Kewal Ram sold their 3/5th share to one Sita Ram son of Ram Singh. Again on 22-3-1939 Bindraban and other sons of Roop Chand also sold their 1/5th share in favour of Lalman son of Sita Ram. In this way Sita Ram son of Ram Singh and Lalman son of Sita Ram became owners pt 4/5th share of the property which originally belonged to Roop Chand, Durga Prasad, Chhidammi Lal and Misri Lal became owners of 1/5th share of the property which originally belonged to Roop Chand. Durga Prasad and others in their turn sold their 1/5th share on 27-7-1939 to Shyam Lal son of Lal Man. Sita Ram son of Ram Singh and three sons, Jodh Ram, Budhsen and Lal Man. Lalman had five sons. Shyam Lal, one of his five sons, had seven sons. Out of them Bhagwan Dass and Govind Ram filed the present suit. Defendants Nos. 2 to 17 are the other descendants of lal Man. It has been further alleged by the plaintiffs that Sita Ram son of Ram Singh used to do commission agency business and purchased the property from the heirs of Roop Chand as Manager of the joint Hindu Family and from joint family funds. Sita Ram died 25 years back as member of the joint Hindu family and after his death his three sons Jodh Ram, Budh Sen and Lal Man became owners of the property left by Sita Ram. Budh Sen and his heirs executed a sale-deed in respect of their share in favour of Lal Man on 4-10-1958. Jodh Ram and his sons executed a separate sale-deed in respect of their share in favour of Lal Man and his sons. It was further pleaded that Lalman purchased the shares of Jodh Ram and Budh Sen from joint family nucleus and entered into possession as members of the joint Hindu family. According to the plaintiffs there was a grave-yard towards north of the land of Roop Chand about which there was certain litigation with some Mohemedans of the locality. In suit No. 438 of 1957 filed by the Mohemedans against Lalman and some outsiders on the basis of that lal Man was given land about 12' in width towards the south of the land which Lalman purchased from the heirs of Roop Chand. Lalman made constructions over that land. The plaintiffs were not born during the life-term of Sita Ram. Therefore, they did not acquire any interest in the property by birth. According to the plaintiff's case the share of Moti Singh which was purchased by Durga Prasad, Misri Lal and Chhidammi Lal was later on purchased by Shyam Lal son of Lalman from the joint Hindu nucleus and that share included in the rest of the property of the suit becime ancestral property of the plaintiffs and defendants No. 2 to 17 by birth. It was further alleged that Roshan Lal had no right, interest or title in the property of Roop Chand. The right of Roshan Lal, if any, was further extinguished because he did not file a civil suit as directed in the pro ceedings under Section 145 Criminal Procedure Code decided in November, 1951. It was further pleaded that defendant No. 1 did not take any steps during the life-time of Lalman. After the death of Lalman the full facts did not come to the knowledge of his son about the aforesaid transfers. Roshan lal filed suits in the Court of the City Munsif, Bareilly against Shyam lal for injunction and declaration of his right which were decreed in favour of Roshan Lal, but the plaintiffs were not parties in these suits. Therefore, the decree passed in those suits are not binding on them. But the defendant No. 1 has taken forcible possession over the disputed land and started raising construc tions over the same. Hence the necessity of the suit. The suit was contested by defendant No. 1. According to the case of the defendant No. 1 the property in suit originally belonged to Moti Singh who was in exclusive possession over the property and after him his transferees were in possession. The defendants No. 1 and his predecessors-in interest had been in adverse possession over the property for more than 50 years and had pres cribed title. It was asserted that there was a litigation between Shyam Lal, the Karta and the defendants. Two suits (Suits Nos. 124 of 1961 and 26 of 1964) were contested by Shyam lal in which he lost and the appeals filed by him were also decided in favour of defendant No. 1. It has been further alleged that the plaintiffs being the heirs of Shyam lal could not bring the present suit and the same was barred by principles of estoppel. It was further alleged that it cannot now be pleaded by the plaintiffs that their father Shyam lal did not either possess property or he did not contest the suit property and that all the documents filed in the present suit were in possession of the plaintiffs and Shyam lal and the plaintiffs were basing their claims on those documents. Hence, it was pleaded that in any case the suit was barred by constructive res- judicata. The plea of limitation was also taken. The suit was dismissed by the Civil Judge, Bareilly. The plaintiffs pre ferred an appeal against the decree and judgment of the Civil Judge which was dismissed by the lower appellate Court. It was held by the lower appellate Court that Sita Ram did not acquire the property from the income of the joint Hindu family business and that his son Lalman was separate from Sita Ram. It has further been held that the suit was barred by principles of res-judicata. The plaintiffs have filed the instant second appeal against the decrees and judgments of the Courts below in this Court. The main controversy between the parties in this case is whether the decrees passed in suit Nos. 124 of 1961 and 136 of 1964 filed by Roshan Lal, the present defendant-respondent No. 1, against Shyam Lal, father of the plaintiff-appellants operate as res-judicata in this case. According to the case of the plaintiff-appellants the previous decrees would not operate as res-judicata in this case for two reasons. Firstly, the plaintiffs who had right by birth in the property in dispute were no parties and secondly those decrees were passed by the Courts of the Munsif while the present suit filed in the Court of the Civil Judge was not triable by the previous Court. According to the case of the defendants the plaintiff-appellants had no right by birth in the property in dispute. Moreover, Shyam lal was the Karta of the family. Therefore, the plaintiffs are bound by the previous decrees passed against their father and in favour of the defendants respondents. Further the present suit filed in the Court of the Civil Judge was triable by the Munsif. It was filed at that time when the aforesaid two decrees were passed. There fore, the Courts below have rightly dismissed the suit of the plaintiff-appellants on the ground of res-judicata. There is no dispute about the fact that 3/5th share of Roop Chand in the property in dispute was purchased by Sita Ram. According to the finding of the lower appellate Court Lalman was separate from his father Sita Ram. At the time of his death Sita Ram left two sons, namely, Jodh Ram and Budh Sen who were joint with him and Lalman was living separately. On the death of Sita Ram the property in dispute passed to his two surviving sons who were members of the joint Hindu family at the time of his death and it was not inherited by Lalman, his third son, as he was separate at the time of the death. In Mst. Ram Dei v. Mst. Gyarsi and other?, (A. I. R. 1949 All. 545 (F. B.)) it has been held by a Full Bench of this Court that the self-acquired property of a Hindu father which his sons, who were joint with him, get on his death, is in their hands as joint family property. As between the sons and their descendants, it is subject to all the incidents of a coparcenary property. Where there are two or more sons of a person who acquired the property, the descendants of each son would vis-a-vis the others' son or sons have the right which a member of a joint family has in the co-parcenary property. Therefore, the plaintiffs had no right by birth in the property in dispute purchased by Sita Ram. The plaintiffs are the sons of Shyam Lal. The previous suits (Suits Nos. 124/61 and 126/64) were filed by Roshan lal against Shyam Lal. The quesion for consideration is whether Shyarn lal contested the suit in his individual capacity or as a Manager or Karta of the family. In the absence of any evidence that the decrees were fraudulent or collusive the sons who are members of the joint Hindu family are bound by the act of the Karta and Manager of the joint Hindu family. In Lingan-gowda Dod Basanga Gowda Patil and others v. Basangowda Bistangowda Patil and others (A. I. R. 1927 P. C. 56.) it has been held that in the case of Hindu family where all have rights, it is impossible to allow each member of the family to litigate the same point over and over again, and in each infact to wait till he comes of age, and then bring an action, or bring an action by his guardian before; and in each of these cases, therefore, the Court looks to Explanation 6 to Section 11 of the Civil Procedure Code to see whether or not the leading members of the family has been acting either on behalf of minors in their interest, or if they are majors, with the assent of the majors. The view expressed by the Privy Council has been followed by the Full Bench of this Court in Thakur Din v. Sita Ram (A. I. R. 1939 All. 399 (F. B.)) and Jahangir v. Jinardan and others (A. I. R. 1947 All. 168) wherein it has been held that a decree obtained against a father or karta of a joint Hindu family is binding on the sons as the father must be held to have represented not only his own interest but also the interest of the other members of the joint family. It was further held that, consequently, a decree passed against a father or a manager of a joint Hindu family must be held to be res-judicata against the other members of the family unless it vitiated by fraud or unless the son estab lishes that his interests were not properly safeguarded. The fact that the sons were no parties to the earlier suit in which the decree against the father was passed will not affect the question as Section 11 is not exhaustive of the principle of res-judicata. In a case where the suit is filed against the father, whether it is filed on the allegations that he is the karta or manager of the joint Hindu family or not the sons are always bound by the decree passed against the father as held in Mool Narain and others v. Mohan Krishna and others (1969 A. L. J. 531 ). In Amrit Sagar Gupta and others v. Sudesh Bihari lal and others (A. I. R. 1970 S. C. 5) it has been held that it is not necessary in order that a decree against the manager may operate as res-judicata against coparceners who were not parties to the suit that the plaint or written statement should state in express terms that he is suing as manager or is being sued as a manager. It is sufficient if the manager was in fact suing or being sued as representing the whole family. The suit by or against the manager will be deemed to be one brought by him or against him as represent ing the family if the circumstances of the case show that he is the manager of the family and the property involved in the suit is family property. It is not neces sary, where the manager is the plaintiff, that the plaint should state in distinct terms that he is suing as manager or where he is the defendant that he is being sued as manager. A karta can represent the family effectively in a proceeding though he is not named as such. In view of the above discussions it is quite clear and now it is a settled view of their Lordships of the judicial Committee, Supreme Court and also by a Full Bench of this Court that a decree obtained against father or karta of the joint Hindu family must be binding on the son and the father must be held to have represented not only his own interest but also the interest of other members of the joint Hindu family. Therefore, the plaintiffs are bound by the decrees passed against their father in the previous suits. The last question for consideration is whether the Munsif who passed the decrees in the previous suits was competent to decide the present suit filed in the Court of the Civil Judge. In case where a suit has been filed after several years the price of the same subject matter is likely to go up with the time. The ques tion is whether in such cases in order to consider whether the previous Court was competent to decide the present suit the present valuation or the valuation of that time when the previous suit was filed should be taken into consideration. According to the learned counsel for the appellants the valuation of the subject matter when the subsequent suit was filed should be taken into consideration. In the support of his contention he has relied upon Pandurang Mahadeo Kavade v. Annaji Balwant Bokil (A. I. R. 1971 S. C. 2228 ). According to the learned counsel for the respondents the valuation of the subject matter in dispute should be taken into consideration of that time when the previous suit was filed and not on the date when the subsequent suit was filed. The learned counsel in support of his contentions placed reliance on several authorities. In Shamaji Narayan v. Govind (A. I. R. 1945 Bom. 45 ). Durjati Subbayya v. Anantaraju Nagayya and others (A. I. R. 1936 Mad. 951 ). Tamizum Nissa Bibi v. Syed Mohd. Husain (A. I. R. 1928 All. 1277) and Ramkaran Singh and others v. Smt. Parbati Kunwar and others (A. I. R. 1954 Pat. 443) it has been held that in order to determine the competency of the Court to try the subsequent suit one has to refer to the jurisdiction of the Court at the time when the former suit was brought and not to its jurisdiction at the time of the subsequent suit. To determine the pecuniary jurisdiction of the courts in a former suit as well as in the subsequent suit, the valuation of the subsequent suit would have to be considered in the eye of law as if this very suit had been instituted at the time when the previous suit was tried and the Court trying the previous suit would have jurisdiction to try the subsequent suit. In Pandurang Mahadeo Kayade v. Anna ji Balwant Bokil (supra) it was found that the value of the subject matter at the time when the previous suit was filed was more than Rs. 5,000/ -. Therefore, it was held that the former Court was not competent to try the subsequent suit. But in the present suit there is no such finding that the valuation of the subject matter when the former suit was filed was more than Rs. 5,000/ -. According to the finding of the Courts below the valuation of the subject matter in dispute when the former suit was filed was below Rs. 5,000/- and was cognizable by the former Court. In this view of the matter, the decrees passed in the former suits will operate as res-judicata in the present suit. In view of what has been discussed above, I find no force in this appeal, which is accordingly dismissed without any order as to costs. .


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