P L D 1953 Azad J (PLP)

ABDUL MAIID, C. J.‑This is a second appeal by the defendants in a suit for possession of land brought in the following circumstances. Ibrahim who had occupancy rights In the land in suit left a widow Ilam Bibi in sambat 1962, she executed a deed of gift !n favour of her daughter Mst. Kako defendant No. 2 who is the wife of defendant No.

1. In Sambat 1970 the father of the plaintiff No. 1 and the remaining plaintiffs Instituted a suit ay collaterals of Ibrahim that the deed of gift should be held invalid as against their rights. They obtained a decree to that effect up to the High Court. After the death of Ilam Bibi, the plaintiffs brought a suit in sambat 1999 for possession of the land in suit. The defendants resisted the suit on the ground of their adverse possession and limitation. Both the Courts below negatived their pleas and relying on the High Court judgment to the effect that the gift deed was ineffective as against the plaintiffs' rights as reversioners decreed the suit. From that decision, the plaintiffs preferred an appeal in the High Court. It was pointed out in the appeal that the Courts below have missed one point. The point was that the Maharaja of Kashmir who possessed proprietary rights in the land had surrendered those rights in favour of the occupancy tenants by reason of the Ailan of sambat 1990, with the result that Ilam Bibi when she died in sambat 1996 become a full owner. Therefore apart front the deed of gift and under the ordinary Muhammadan Law no custom being pleaded to the contrary, the interests of Ilam Bibi as a proprietor bad devolved on her only heir, the defendant No.

1. The gift deed was not given effect to since possession remained with Ilam Bibi. This being the case, the plaintiffs were not entitled to recover the possession. The Judges of the High Court accepted this point of view and the suit was dismissed with costs. An application for leave to file an appeal before the Judicial Board was made to the High Court but it was rejected. An application for special leave to appeal was made to the Judicial Board, but before it could be decided, the Liberation Movement started. The plaintiffs thereafter again filed a suit in the Court of Sub‑Judge, Mirpur for possession of the land. The defendants put in several pleas in opposition to the claim of plaintiffs. The suit came up for hearing before Sheikh Abdur Rehman, Sub‑Judge, who framed the following preliminary issues: (1) Whether the principle of res judicata applies to the present suit and as such this suit is not tenable? . . . . . O. P. on defendants. (2) Whether in view of the decision of the High Court, this Court has got the jurisdiction to hear the suit? . . . . . O. P. on plaintiffs. Both the above issues were decided by Sheikh Abdur Rehman in favour of the plaintiffs. A revision application was filed in the High Court against the decision of Sheikh Abdur Rehman. The application was dismissed on the ground that the order of Sheikh Abdur Rehman interlocutory could not be revised. After the preliminary issues had been disposed of, the following further issues were framed;‑ (1) Whether Mst. Ilam Bibi gifted the suit land In favour of Mst. Kago lawfully and it was not set aside on the suit of the plaintiffs? . . . . . O. P. on defendants. (2) In case of non‑proof of issue No. (1) whether on the suit of the plaintiff it was held that the gift deed is lawful? . , . . . O.P. or; defendants. (3) In case of proof of issue No. 2 what is the effect of Issue No. 2 on the suit? .. O. P. on defendants. (4) In case of non‑proof of issues Nos. 1 to 3 whether the plaintiffs are entitled to a decree for possession of the suit land? . . . . . O. P. on plaintiffs. (5) To what relief the parties are entitled?. . . . . O. P. on parties. Chaudhry Rahim Dad who succeeded Sheikh Abdur Rehman found issues Nos. 1 to 3 against the defendants. As regards issue No. 4 his finding was that Ilam Bibi who died in sambat 1996 had become full owner, Maharaja had conferred proprietary rights of the land on her in sambat 1990 and consequently the land became her acquired property and on her death, her daughter Mst. Kako was entitled to inherit it under Muhammadan Law. Chaudhry Rahim Dad accordingly dismissed the suit with costs. The plaintiffs preferred an appeal from the decision of Chaudhry Rahim Dad in the Court of District Judge. The learned District Judge held that proprietary rights had been conferred on the estate of deceased husband of Ilam Bibi and her status as a limited owner was not changed thereby. The result was that plaintiffs were held entitled to possession of the land as reversioners of the deceased husband of Ilam Bibi. The defendants challenge the decision of the learned District Judge In the present appeal. As already stated the finding of the High Court in second appeal in the previous suit was binding on the lower Court under section 11, C. P. C., unless it was ruled out by the Judicial Board. The mere fact that application for special leave to appeal had been filed before the Judicial Board, did not affect that finding. The previous suit had been finally decided by the finding of the High Court which remained Intact. It could not there fore, but operate as res judicata in any subsequent suit. A I R 1938 All. 635 and A I R 1932 All. 603 are clear authorities on the point. It is true that when the decision of the lower Court is appealed from all questions decided by it, again become subjudice and its decision cannot operate as res judicata pending the appeal. It is also true that decision of the appellate Court on such questions supersedes the decision of the first Court and that for the purposes of res judicata, the decision of the appellate Court unless it adopts that of the first Curt, is to be considered, but it the appeal is not decided on the merits or is not entertained, it becomes infructuous and the decision of the lower Court becomes conclusive and operates as res judicata as regards the question decided by it in a subsequent suit between the same parties assuming of course that other conditions of the rule exist. The decision of the High Court having not been superseded operated as a res judicata in the present suit. It has been contended that decision of the High Court is erroneous in law and it should not be taken to operate as res judicata. The decision of the High Court was no doubt erroneous in law. Ilam Bibi had succeeded to the estate of her husband as a limited owner when the proprietary rights were conferred on occupancy tenants by the Maharaja and her status as a limited owner could not be changed. The view of the High Court that she became full owner of the property in her own rights consequently was wrong. An erroneous decision on a question of law fn a previous suit is not a bar in a subsequent suit between the same parties and different decision may be given A on that question but decision so given should not in any way affect the operation of the former decree or take away the rights acquired by the parties thereto. Following this principle the plaintiffs cannot take advantage of the High Court's decision being erroneous and deprive the defendants of the rights acquired by them under that decision. The plaintiff's suit was therefore rightly dismissed by the trial Court though on different grounds. The view of the learned District Judge is totally wrong. If it be held that by the Allan of Maharaja in sambat 1990, Ilam Bibi did not become full owner of the land possessed by her, then on her death the land would be inherited by all the heirs of her husband according to Muhammadan Law and not by the plaintiffs alone. My view being that the decision of the High Court operated as res judicata so far as the present suit is concerned, the plaintiff's suit cannot but be dismissed. For the above reasons, I accept the appeal and setting aside the decree and judgment of the District Judge, restore that of Sub‑Judge. Having regard to the circumstances of the case, I order, that parties shall bear their own costs throughout. A. H. Appeal accepted.