P L D 1957 Dacca 575 (PLP)

RAHMAN, J: This appeal is against the decision of the Subordinate Judge, 2nd Court, Chittagong, setting aside the decision of the Munsif, 4th Court, Sadar, Chittagong, in Title Suit No. 27 of 1943. The suit, out of which this appeal arises, was for joint possession on declaration of plaintiff's title to the extent of 6 annas 9 gandas 2 krantis and 15 513 tils in the plots mentioned in the plaint, or in the alternative for partition of the said joint lands, and allotment of a separate saham for the plaintiff's share in the said plots. The plaintiff's case was that the properties in suit originally belonged to one Korban Ali, who died leaving 5 sons, 3 daughters and a widow. The sons were defendants Nos. 1 to 3 in the suit, one Abdul Kadar and one Rehanuddin, and the daughters were defendants Nos. 4 to 6 in the suit. According to the plaintiff, on the death of the widow of Korban Ali, defendants Nos. 1 and 2 and Abdul Kader became entitled to a share to the extent of 6 annas 9 gandas 2 krantis and 155/13 tils in the properties left by Korban Ali, and the plaintiff in execution of a money decree obtained by him against the defendants Nos. 1 and 2 and the said Abdul Kader, had their share in the said pro perties sold, and purchased it at a Court sale held on the 15th June 1936. The plaintiff claims that he obtained delivery of possession through Court of the properties purchased by him at the Court sale on the 24th January 1939. He alleged, however, in the plaint that he had since come to know that the said defendants Nos. 1 and 2 and Abdul Kader had earlier allowed the firm of one Nabin Mahajan and others to put up the properties to sale in execution of another decree obtained by the aforesaid firm, and to purchase the same, but had even tually on the 15th March 1934, got the properties back from the said auction‑purchasers in the benami of their younger brother Ekramal Hoque, the defendant No. 3 in this suit. In these circumstances, the plaintiff claimed that his judgment -debtors, namely the defendants Nos. 1 and 2 and the said Abdul Kader, had still title and possession of the lands purchased by the plaintiff in the auction‑sale, and, therefore, he was entitled to the possession of the said properties. It appears that in the year 1941 the present plaintiff instituted another suit, being Title Suit No. 25‑A of 1941 against some of the defendants in the present suit and others, for the recovery of possession of some of the properties purchased by him at the auction‑sale, and covered by the sale certificate issued in his favour upon, inter alia, the same grounds as are alleged in the present suit. The present suit was contested by defendant No. 11 alone who is the appellant before me. This defendant No. 11 was also a defendant in the previous Title Suit No. 25‑A of 1941, and was defendant No. 12 therein. The main contentions of this defendant in this present suit were that the suit was barred by limitation, as also under the provisions of Order II, rule 2 of the Code of Civil Procedure, inasmuch as the previous suit was also based on the same sale certificate, and therein the lands in this suit had not been included. This defendant further alleged that the plaintiff had acquired no title to the plots in suit, because, at the time when the plaintiff made his purchase, his judgment‑debtors, the defendants Nos. 1 and 2 and Abdul Kader, had no subsisting interest in the disputed properties, on account of the fact that the said properties had been sold in execution of a rent decree obtained by the landlords on the 12th of January 1933, and auction‑purchased by one Abdul Khaleque. That rent sale was confirmed on 1st of March 1933, and the said Abdul Khaleque, on the 2nd of July 1933, had transferred the properties to Ekramal Hoque, the defendant No. 3 in this suit by a kabala Exh. B, and that the defendant No. 11 had since, on the 19th of October 1938, purchased the same from the said Ekramal Hoque by the kabala, Exh. B.

1. In these circumstances, this defendant No. 11 claimed that the title to the properties had passed through Abdul Khaleque to Ekramal Hoque before plaintiff purchased on the 15th of June 1936, in execution of the decree obtained by him, and, therefore, the plaintiff by such purchase acquired no title to the properties. It may be mentioned here that in the said previous Suit No. 25‑A of 1941, the defendant No. 11, who, as already stated, was defendant No. 12 in the said suit, also contested the said suit upon these identical grounds. In that suit, however, it was held by the Subordinate Judge 3rd Court, Chittagong, on an appeal preferred by the said defendant No. 12 in the said suit, being Title Appeal No. 105 of 1942, that the kabala obtained by Ekramal Hoque from Abdul Khaleque the auction‑purchaser, was a benami document, and that the said Ekramal Hoque was a benamdar of his brothers, the defendants Nos. 1 and 2, and Abdul Kader in respect of all the lands covered by the said kabala and that the said defendant could not claim any title to the lands in dispute in that suit by virtue of his aforesaid kabala. The learned Munsif trying the present suit held that, except for plots Nos. 8602, 8604, 8657 and 8738, the plaintiff had established his claim, and, therefore, decreed the suit in part in favour of the plaintiff, but dismissed the suit in respect of the aforesaid four plots. The learned Munsif also held that the suit was not barred by reason of the provisions of Order II, rule, 2 of the Code of Civil Procedure, and that it was also not barred by limitation. With regard to the decision, however, in the previous Suit No. 25‑A of 1941, the learned Munsif stated: "It is true that the learned Appellate Court did come to such a conclusion on the evidence adduced in that suit, but I do not see any justification for enforcing that finding upon the defendant when the evidence adduced does not warrant any such view." Against this decree, it must be noticed here, the defendants did not prefer any appeal, but the plaintiff preferred an appeal challenging the dismissal of the suit in respect of the said four plots. In this appeal, the learned Subordinate Judge came to the view that as the present defendant No. 11 was defendant No. 12 in the previous Suit No. 25‑A of 1941, and had based his claim with regard to some of the plots in dispute in that suit upon this very kabala obtained by Ekramal Hoque from Abdul Khaleque, the findings of the learned Subordinate Judge in appeal against the decree in the said suit, as to the benami character of that document, operated as an estoppel per record on the point, and that the defendant No. 11 could not in the present suit be permitted to agitate the same question of his title on the basis of the purchase of Ekramal Hoque from Abdul Khaleque, and, therefore, the plaintiff must succeed in proving his title even with respect to the aforesaid four plots. In these circumstances, the Court of appeal before declared the plaintiff's title in all the properties in dispute in this suit to the extent of the share claimed by him, and directed that the plaintiff be put in separate possession of his aforesaid share on partition by metes and bounds of the said properties. It is against this decree that the defendant No. 11 alone has preferred this appeal, and has urged before me substantially the same grounds as were urged in the Courts below on his behalf. The first of these grounds' is that the suit should have been held to be barred under the provisions of Order II, rule 2 of the Code of Civil Procedure. The contention of the learned Advocate appearing on behalf of the appellant appears to be that, in so far as the present dispute arose out of the same transaction, namely, the auction‑sale, and the sale certificate obtained by the plaintiff and some of the parties, both in this suit and in the said Suit No. 25‑A of 1941, were common, these properties should also have been included in the previous suit ; and, in so far as they were not so included,, the plaintiff failed to claim all the reliefs in respect of his cause of action, and, therefore, he should be held to be debarred now to claim the present relief in respect of the same cause of action. It is true that in the present suit the plaintiff and some of the defendants are the same as in the previous suit, and that the plaintiff's cause of action arises from the same transac tion, namely, the purchase in a Court sale on the 15th June 1936, but it must be remembered that the properties, of which the plaintiff now seeks partition, were not the same as the properties in the previous suit, and admittedly some of the defendants in this suit were not interested in the properties in dispute in the previous suit. In these circumstances, I do not see how it can be said that the cause of action is the same, because the defendants, who are not common, could not have been made parties in the previous suit. As such the cause of action of the plaintiff in respect of the properties in which the said defendants were interested was different from his cause of action in respect of the properties in which the said defendants were not interested. This rules does not enjoin that where there are several causes of action arising from the same transaction, the plaintiff should sue for all of them in one suit. As was observed by their Lordships of the Privy Council in the case of Payana Reena Saminathan and anotheY v. Pana Lana Palaniappa (41 I A 142 (148)): "This rule is directed to securing the exhaustion of the relief in respect of a cause of action and not to the inclusion in one and the same action of different causes of action, even though they arise from the same transactions." In the light of the observation of their Lordships of the Privy Council, which is quoted above, it appears to me that unless it can be shown that the cause of action of the present plaintiff in both the previous suit and the present suit was the same, there can be no justification for the contention of the learned Advocate. That in the facts of the present case the cause of action could not be the same, seems to be supported also by the decision in the case of Purushottam and another v. Atmaram Janardan and others (I L R 23 Bom. 597), where Parsons and Ranade, JJ., of the Bombay High Court held that a suit brought by some members of a family against the other members of the same family for partition of the joint family property does not preclude a second suit by the same plaintiffs for partition of other property belonging jointly to their family and strangers. The facts of this case appear to me to be similar to the facts of the present case, for, as I have already stated, some of the defendants in the present suit were not interested in the properties, of which partition was sought in the previous suit. In these circumstances, the first point taken by the learned Advocate for the appellant must fail as it has failed in both the Courts below. The next point urged by the learned Advocate for the appellant was that the lower appellate Court was entirely wrong in taking the view that there was any question in this case of estoppel per record. According to the learned Advocate for the appellant, the judgment in the previous suit could only be admitted under section 40 of the Evidence Act, if it amounted to res judicata. Short of that, there could be no question of any estoppel per record. Unless, therefore, it could be held that the appellate judgment in the previous Suit No. 25‑A of 1941, was res judicata against the appellant before me, the present suit could not succeed, because, apart from that judgment, no other evidence had been adduced by the plaintiff in the present suit. The learned Advocate appearing on behalf of the plaintiff respondent has conceded this position. He agrees that if the defendants No. 11 is not barred by the principles of res judicata from reagitating this point, the plaintiff must fail, and he also concedes that, apart from this judgment, no other proof of the benami character of Exh. B has been adduced in this case. In these circumstances, it is not necessary for me to consider how far a previous judgment between some of the parties in a suit may constitute an estoppel per record but I must consider in this case whether the findings as to the benami character of the document, Exh. B, are res judicata as against the defendant No. 11 in the present suit. The learned Advocate for the appellant concedes, as indeed he cannot but do, that the plaintiff in this suit and some of the defendants in this suit, were also the plaintiff and some of the defendants in the previous suit, and that some of the issues that arise in this suit were the same as the issues that arose in the previous suit, namely, with regard to the nature of the purchases by Ekramal Boque from Abdul Khaleque and the firm of Nabin Mahajan and others. Upon these facts, since the finding as to the benami nature of the documents was one which was absolutely essential to sustain the judgment in the previous suit, namely, Title Suit No. 25‑A of 1941, in so far as the plaintiff's title to the lands alleged to have been purchased by defendant No. 11 from Ekramal Hoque was concerned, I must say that that finding would be res judicata as against defendant No. 11 in the present suit, and that the Court would be precluded from trying the same issues over again between the plaintiff and the said defendant No.

11. The learned Advocate for the appellant, however, has put forward a very ingenious argument. He contends that even though res judicata it (sic) would not be available as a plea to the plaintiff in the suit. The ground upon which the learned Advocate seeks to support this contention is that, according to him, the plea of res judicata is a plea in bar stopping the trial of the suit or the issue in limine, and, therefore, it is a plea which can be used only as a weapon of defence and not as a weapon of attack. In other words, the plea of res judicata can never be available, according to the learned Advocate for the appellant, to a plaintiff in a suit. If available at all, it is available only to a defendant in a suit. In support of this contention, the learned Advocate has drawn my attention to certain observations of Mahmood, J., in the case of Sita Ram v. Amir Begum and others (I L R 8 All. 324 (332)). The observations, to which my attention was drawn, are set out at page

332. It appears to me, however, that, that decision does not assist the learned Advocate in any way. The facts in that case were that the plea of res judicata was sought to be set up against a plaintiff mortgagee in respect of certain decisions obtained against the mortgagors in a litigation commenced long after the plaintiff's mortgage itself had been created, and to which litigation the plaintiff mortgagee was not made a party. In considering the question, as to whether the plea of res judicata could operate against the plaintiff in that suit before their Lordships, Mabmood, J., came to the view that the right of the mortgagor, in so far as the mort gage itself limited that right, stood transferred under the Transfer of Property Act to the mortgagee, and that in a suit instituted subsequent to the creation of the mortgage if the mortgagee was not made a party to that suit; the mortgagee's interests were not affected by that decision. In discussing this question, however, his Lordship had also to consider another argument, as to whether the previous judgments could operate as estoppels. In discussing the difference between estoppel by record, estoppel by judgment, and the plea of res judicata, his Lordship came to observe that: " . . . . . . the rule of res judicata does not own its origin to any such principle, but is founded upon the maxim nemo debet bis vexari pro une et eadem causa‑a maxim which is itself an outcome of the wider maxim interest reipubicae ut sit finis litium." And in that connection went on further to observe: "In other words, res judicata prohibits an inquiry in limine, whilst an estoppel is only a piece of evidence." This is the particular passage in the judgment upon which the learned Advocate for the appellant has placed great reliance. I do not doubt the correctness of this observation; but, as I have stated, this observation taken in its context does not, having regard to the facts and circumstances of that case, assist the learned Advocate's case here. It seems to me that the principle of res judicata is mutual, and it is open as much to a plaintiff as to a defendant to show res judicata in his favour and there can be no such bar in law which can prevent the plaintiff from relying upon the plea of res judicata. As observed in quite a large number of decisions, the rule of res judicata is a rule of procedure which prohibits the Court from investigating into a matter which has already been adjudicated upon between the same parties, no matter whether they are plaintiffs or defendants in a subsequent suit. In any view of the matter, even conceding for a moment that there is some substance in the argument of the learned Advocate, I find it difficult to see how he can argue that there was anything decided in the former suit which can be said to be a bar to the plaintiff claiming partition, and separate possession of his legitimate share in the lands in the present suit. If there was any decision in the previous suit, it was a decision against the defendant No. 11, that the title he bad sought to set up in the previous suit was merely a colourable and a sham title‑the real title being still in the judgment -debtors of the plaintiff. In the view that I have taken, I find that I am supported also by quite a few decisions, where a plaintiff in a suit has successfully raised the plea of res judicata, in order to prevent a defendant in the suit from relying upon the same allegations or the same points that were made and found against him in a previous suit. The first is the case of Musammat Bibee Efatoonnisa v. Khondkar Khoda Newaz and another (21 W R 374), where in a suit to recover money lent upon a mortgage which defendant refused to register, defen dant put to a construction upon an arrangement therein alleged, which was accepted by the Court and the claim of the plaintiff was dismissed as premature. The plaintiff thereafter sued again in due time but on behalf of the defendant it was contended that the construction put in the previous suit was wrong, and that the plaintiff's suit could not succeed. Markby J. in dealing with this contention, observed: "Now the result of that is, that, whereas in the former suit between the same parties, one construction was put upon this arrangement, namely, that the debt was not due until 1976, a contrary construction is now put upon it by another Judge in deciding a suit between the same parties namely, that the money was due at the time when the arrangement was made. That is the thing which cannot be done. Whether the decision in the first case was right or not, it is not necessary (as it seems to me) for us to consider. The defendants, upon the former oc casion, put forward what he considered to be the true construction of the agreement between the parties. That was accepted by the Court which then tried the suit as the right construction, and it is not open now to the parties to say that that construction was wrong, nor is it open to the Court to say so. That decision is binding as between these parties, and it must be acted upon." Again in the case of Kedar Nath Singh v. Sheo Shanker and others (A I R 1923 All. 613), where the defendants in a suit sought to base their title upon a sale deed which had in a previous suit been declared to be nominal and fictitious, their Lordships of the Allahabad High Court held as follows: "As regards the matter being res judicata, it seems to us that the question as to the validity or otherwise of the sale deed of the 2nd of August 1903, was a matter directly and substantially in issue in the previous suit. A portion of the property claimed in that suit was claimed on the basis of the sale deed. Unless the validity of the sale deed could be established, that part of the claim could not prevail. Therefore the question whether the sale deed was a valid document was a question which arose directly and substantially in the previous suit, without deter mination of which that suit could not be determined. It is true that the property now claimed was not claimed in the previous suit, but the title to this property and to the property then claimed was derived from the same source, and the Court decided that source, namely, the sale deed to be invalid, and that it conferred no title on Kashi Nath (a defendant . . . . . . as in the present case the claim is based entirely on the sale deed, and the question of validity of the sale deed arose directly in the previous suit, and that suit could not be determined without a decision as to the validity of the sale deed, the decision in the previous suit must be held to be binding as between the parties." Similarly, in the case of Shanker v. Prabhakar Dixit and others (A I R 1936 Bom. 402). Broomfield and Tayaoji, JJ. gave effect to a plea of res judicata against a defendant in a suit. The facts of the suit were that a widow had transferred the property of her deceased husband to a third parson, and then adopted a son. The adopted son brought a suit against the alliance of the widow to recover possession of the property. That suit was dismissed on the ground that the adopted son had no cause of action to bring a suit for possession during the widow's lifetime, but it was held that the suit was maintain able after the widow's death. Subsequent to this decision, the adopted son sold the property to his natural father, who in his turn sold it to a different person who ultimately brought a suit to recover possession of the same property after the death of the widow. It was held that the decision in the former suit, even though erroneous, was res judicata against the defendant's plea that the cause of action for the suit for possession arose on the date of adoption, and that the suit was time barred. It will thus be seen that decisions are not wanting m here a plaintiff has been allowed to plead res judicata in his favour so that the defendant may be prevented from setting up the same or a contradictory plea. In these circumstances, I do not think that the con tention of the learned Advocate, that the plea of res judicata cannot be available to a plaintiff is of any substance what soever. Having come to the view that the plea of res judicata is available as much to the plaintiff as to the defendant, I must hold that since in the present case the relevant issues in the present suit, and the relevant issues in the previous suit were identical, and that both the plaintiff and the defendant No. 11 were parties in the previous suit, as well as in this suit, therefore, the decision of the benami nature of the kabala, Exh. B. is binding against the defendant No. 11 in the present suit also, and that the Court was prevented from trying that issue as to the true nature of that document, Exh. B. Here, I must also notice another alternative branch of the argument of the learned Advocate for the appellant. He contended that even if it be held that the plea of res judicata could be raised by the plaintiff in his favour, and even if in the present case other elements were present to constitute res judicata, that would not be sufficient to establish the plaintiff's title to the properties in dispute, because the Courts below had not come to any definite finding that the defendant No. 11 was not a bona fide purchaser for value without notice. This, according to the learned Advocate, was essential, and unless that finding is there, the decision of the Court below cannot be supported. In answer to this latter contention of the learned Advocate, it has been argued on behalf of the respondent that this is the first time that this plea has been raised in this Court; it was not raised in any of the Courts below; and that in any event that plea itself is also concluded by the appellate judgment in suit No. 25‑A of 1941. According to the learned Advocate for the respondent, the finding on this question, if not directly res judicata, was at any rate constructively res judicata because, unless the appellate Court in the previous case came to the view that the defendant No. 11 was not a bona fide purchaser for value without notice, it could not have come to the finding that the defendant No. 12 in that suit acquired no title to the plots in dispute therein by his alleged purchase under the kabala obtained from Ekramal Hoque. It seems to me that this argument of the learned Advocate for the respondent is not without foundation, but, apart from this. I must say that, in the absence of any evidence on the record as to this question, the party, who must fail, must be the party on whom the onus to prove this rested, and I have no doubt in my mind that the onus to prove as to whether the defendant No. 11 was a bona fide purchaser for value without notice was entirely on the defen dant No. 11, and not on the plaintiff in this case. From the fact that no evidence was adduced with regard thereto, it must be held that the defendant No. 11 failed to adduce any evidence on this point, and therefore, it is the defen dant No. 11 who must fail on this account. It might be that he did not press this claim, and, therefore, raised no issue, and led no evidence thereon. In the view that I have taken however, on the question of onus of proof, I am also supported by the decision in the case of Mst. Sunder Kuer v. Shah Udey Ram and others (A I R 1944 All. 42), where their Lordships Verma and Yorke JJ. held that it is for the party relying on section 41 of the Transfer of Property Act to establish the facts which, according to him, entitled him to the benefit of the rules laid down in that section. In the present case, it was for the defendant to establish the facts which, according to him, entitled him to the benefit of the rules laid down in the said section, and, therefore, the onus was upon him to prove those facts. Lastly, the learned Advocate for the appellant argued that the present suit should have been held to be barred by limitation. According to him, the appropriate Article of the Limitation Act, which applied to the present case was Article 91 of the First Schedule to the Limitation Act. He contended that this was a suit, in effect, for the cancellation of a document, namely, kabala Exh. B. Unless that was declared to be benami and cancelled, the plaintiff could not succeed, and, therefore, he had, according to the said Article, to sue within three years from the date of the execution of that kabala. With this contention of the learned Advo cate also. I am unable to agree. Article 91 does not apply to a case where the document is sought to be declared to be benami, as was observed by their Lordships of the Privy Council in the case of T. P. Petherpermal Chetty v. R. Muniandi Servaa and others (35 I A 98): "As to the point raised on the Indian Limitation Act, 1877, their Lordships are of opinion that the conveyance of June 11, 1895, being an inoperative instrument, as in effect it has been found to be, does not bar the plaintiff's right to recover possession of his land, and that it is un- necessary for him to have it set aside as a preliminary to his obtaining the relief he claims. The 144th, and not the 91st Article in the Second Schedule to the Act is, therefore, that which applies to the case, and the suit has consequently been instituted in time." Similarly, in the case of Sham Lall Mitra v. Amarendra Nath Bose (I L R 23 Cal. 460), in a suit brought for the recovery, inter alia, of possession of the plaintiff's share with mesne profits, and for declaration that the deed executed by one Kashinath Ghose in 1850 was benami, and a colourable transaction, and, therefore, not valid and binding, it was held by Banerjee and Rampini, JJ. that Article 91 of the Second Schedule to the Limitation Act, 1877, did not apply to the case. That Article applied only to suits in which the documents sought to be set aside were intended to be operative against the plaintiff or his predecessor in title and would remain operative if not set aside. In the present case also, if the plaintiff's allegations are substantiated, as they have been found to be by both the Courts blow, the deed in question was never intended to be operative, and, therefore, will not be operative, no matter whether it is set aside or not. It seems to me that the very language of Article 91 itself also tends to support this conclusion, for, in the third column, where the time from which the limitation begins to run from the time when the fact entitling the plaintiff to have the instrument cancelled or set aside becomes known to him. This, in my opinion, clearly goes to show that, but for certain facts which may not be within the knowledge of the plaintiff at the time when the document was executed, the document would be valid. This would not be the position where a document was benami, far from its very nature, it would be known to be inoperative from the very beginning. In my view, the present suit was governed either by Article 137 or by Article 144 of the First Schedule to the Limitation Act. Under both these Articles, the period of limitation prescribed is 12 years, and since the suit was brought within 12 years of the execution of Exh. B, the suit was not barred by limitation. Before I conclude, I have also to point out that in Title Suit No. 25‑A of 1941. both the trial Court and the appellate Court also held that the alleged purchase by Ekramal Hoque from the firm of Nabin Mahajan and others on the 15th March 1934, was also a benami transaction, that Ekramal Hoque was in this case also a mere benamdar of the judg ment‑debtors of the plaintiff. This transaction also is, as such, of no avail to the appellant before me as he is equally bound by the said finding. Having regard to the view, that I have taken as to the contentions of the learned Advocate for the appellant, I must hold that since the learned Advocate has failed on all the points urged by him, this appeal must also fail, and, there fore, I dismiss this appeal; but having regard to the facts and circumstances of this case, I make no order as to costs. Leave asked for under Clause 15 of the Letters Patent is granted. K. B. A. Appeal dismissed.