P L D 1956 Lahore 245 (PLP)

KAIKAUS, J.‑I will narrate in brief the circumstances that give rise to this second appeal. One Buta had two sons, Zulfu and Yara. In 1889, 244 kanals and 8 marlas of land were entered in the joint names of Zulfu and the sons of Yara. Allahdad and Baju, the share of Zulfu being 8/4th and that of the sons of Yara 8/4th. In the Jamabandi of 1891‑92, 40 kanals out of this land were entered in the name of some transferees and this entry has persisted up to the present day. With respect to the land which still stood joint in the names of the parties an application for partition was submitted by some representative of Zulfu and that land was partitioned. The present suit is filed by the descendants of Yara against the descendants of Zulfu and their transferees. The plaintiffs claim that the transfer of 40 kanals entered is the Jamabandi of 1892 had in fact been effected only by Zulfu and that there fore in the whole of 244 kanals 8 marlas they continue, to hold h 8/4th share. The reliefs claimed are a declaration of the 8/4th share of the plaintiffs and an injunction restraining the defen dants from interfering with their possession. No relief has been specifically asked for with respect to the partition. The trial Court dismissed the suit. On appeal the learned Senior Civil Judge came to the conclusion that the transfer of 40 kanals had been effected only by Zulfu and decreed the suit. This is an appeal by the defendants. After going through the revenue records I have no doubt that the finding of the learned Senior Civil judge 8/4th respect to the transfer of 40 kanals is correct. From the Jamabandi Exh. P‑3 of the year 1889 it is clear that this 244 kanals and 8 marlas stood in the joint names of Zulfu and Dadu and Baju sons of Yara, the share of Zulfu being 8/4th and the share of sons of Yara 8/4th. On the 2nd of May 1891 was entered a mutation of sale (Exh. P. M.) by Zulfu in favour of Dadu son of Sharaf Din and Ilam Din son of Dadu 'on the basis of a registered sale deed. The Girdawar reported that as the sale was made of a share in the joint khata, it should be entered in the cultivation column. This mutation was rejected; it does not appear for what reason, there being only a short order that it is rejected. On the 7th of December 1891 Dadu and Ilam Din who were mentioned as transferees in mutation Exh. P. 7 made a report that they had purchased the land and had been in possession and a mutation had also been entered in their names. They stated further that Buta son of Fateh Din, Kammun son of Neka and Sadar Din son of Zulfu wanted to file a suit to pre‑empt the sale in their favour but they had themselves willingly sold the land to them. On the basis of this report a mutation (Exh. P.8) was sanctioned in favour of Buta etc. The order said that the sale was to be entered in the cultivation column. However in the next Jamabandi of 1891 9Z instead of being entered in the cultivation column the entry of the names of Buta etc., was made in the ownership column so that the names of the sons of Yara stood removed. It is really this mistake of some revenue official which has been responsible for the whole trouble. Under the rules contained in the Land Records Manual whenever a co‑sharer in a joint khata sells particular khasra numbers the sale is entered only in the cultivation column showing the names of the vendor and the vendee and the ownership column remains unchanged. In this case by some mistake an entry had been made in the ownership column, which henceforward showed only the vendees as owners of the property. It is quite clear that a sale of this 40 kanals of land which bears now khasra No. 60 had been effected by Zulfu alone. Learned counsel for the appel lants has urged that as the original sale deed had not been proved by preliminary or secondary evidence the Court could not take into consideration the revenue records as the existence of the deed barred, by virtue of section 91 of the Evidence Act, the admission of any evidence for proof of the sale except the sale deed. I may state here that before the lower Court the plaintiffs made an effort to prove this registered sale‑deed of 1889 but their application was rejected on the ground that Order XLI rule 27 did not cover the case. There is more than one reason why revenue records cannot be excluded from evidence. In the first place the question is not of the terms of a transaction out of the persons who were arties to a transaction, which both parties accepted. Such evidence is not excluded by section 91 Evidence Act. Secondly the A plaintiffs have simply to lead evidence to rebut the entry which stands in the revenue records with respect to this 40 kanals of land. It is not necessary for them to prove positively that the sale was by Zulfu alone. This entry is sufficiently rebutted by the production of copies of mutations Exhs. P‑7 and P‑8 which show that the sale had in fact been made by Zulfu alone and even the order was that it should be incorporated in the cultivation column. Truly, there is no order making a change in the ownership column at all. Once we hold that this entry is illegal, the previous entry which showed the sons of Yara as owners of 1/4th of land is deemed to be standing for an entry subsists till a new entry is lawfully substituted there for. On the merits it is clear that there is no reason to inter fere. However, there is a question of law involved in this case which, though it was not argued before the learned Senior Civil Judge, I have allowed to be argued, being a pure question of law and having been made the subject of an issue in the trial Court. Previous to the present suit Allah Dad son of Sadar Din, the contesting defendant in this case, had filed a suit for possession of the same 40 kanals of land which were transferred by mutation Exh. P‑

8. He stated in the plaint in that suit that this property had fallen to his share on partition of the land by the revenue authorities. Two of the present plaintiffs, Fazla and Allah Ditta sons of Baju were defendants in that suit. That suit was decreed. A copy of the judgment in that case is Exh. D.‑

2. Allah Dad defendant pleaded in the trial Court that this judgment was res‑judicata between the parties. Issue No. 7 was framed with respect to the effect of previous litigation. The trial Court held that the judgment was not res‑9udicata because all the persons who were parties to the present suit were not parties to that litigation. In the judgment of the lower appellate Court the question of res -judicata was not discussed. The question raised before me is whether the shares of Fazla and Allah Ditta in khasra 'No. 60 which was in dispute in the previous suit have not been affected by res‑judicata. It is not correct, as has been assumed by the trial Court, that for the application of res‑judicata all parties to the present litigation must have been parties to the previous one. If this was so, the principle of res‑judicata could easily, in the words of Scotland C. J. in Mohidin v. Muhammad Ibrahim (IMHCR245) " be got rid of by introducing a man of straw as a plaintiff or defendant in the subsequent suit." A matter decided between two parties may come up before a Court mixed up with other matters in which other persons too are interested, or in the subsequent litigation proper and pro forma parties may be added. There is no principle on which the binding effect of a decision between two parties can be affected by such circum stances. As pointed out by the learned judges in Gopal Das v. Gopi Nath Sircar (12CLR38) " res‑judicata is a personal matter between the parties and so far as those parties are concerned, the ques tion is concluded for ever. The fact that there are other parties in the suit, upon whom the former decision is not binding, cannot be a ground for holding otherwise." The rule is thus stated in Freeman on Judgments Paragraph 417 :‑ " Identity of parties in the two proceedings is in general essential to the operation of an estoppel by judgment. This does not mean, however, that there must be a complete identity as to all the parties in both proceedings. All that is necessary either to an estoppel or bar is that the persons between whom the judgment is to operate as res‑judicata should be the same. It is therefore immaterial that persons were parties in the first proceeding who are not included as parties to the second, and vice versa, so long as the effect of the judgment is confined to those who were parties or privies to both proceedings. This violates none of the principle usually applied to estoppels, but, on the contrary, is supported by them and the considerations of public policy on which they are based. The former adjudication ought not to be any less conclusive on the parties common to both proceed ings, because other persons were joined with them in the first or second suit, since, as to them, the matter could have been as efficiently litigated as though they were the sole parties in interest, and there is no reason why it should be re‑opened. Those parties to the second proceeding who were neither parties nor privy to the first judgment are not bound by it, unless upon some other principle not here under consideration." Once a matter has been determined between two parties the decision remains binding in any litigation between those two parties irrespective of the existence of other parties on the, record. The only exceptions to this rule are cases where in `' order to give effect to the right of a person not party to the previous litigation it becomes necessary to supersede the previous decision. As examples of such exceptional cases, I may refer to suits for partition or for partnership accounts, where all co‑sharers or partners, as the case may be, were not on the record in the previous litigation. In such cases the right of a co‑sharer to have a partition or the right of a partner to have rendition of accounts cannot be affected by a judgment that exists between other co‑sharers or partners. In order to afford relief to the co‑sharer or partner who was not a party to the previous litigation it will be essential in such cases to ignore the previous decision for there can be only one partition and only one rendition of accounts. It will be observed, however, that in these cases the co‑sharer or partner was a necessary party for the previous suit. In his absence no effective decree could have been passed, and his presence was essential to the constitution of the suit itself. A similar case would be one where a joint and indivisible right vests in a number of persons and only some of those persons were parties to the previous litigation. To repeat, the principle involved is that a matter adjudicated upon between two parties remains res‑judicata as between them unless and until it becomes neces sary to supersede the decision in order to grant relief to a person not party to such decision. In order to explain how the rule of res‑judicata will apply in the present case, I will re‑examine the facts of the case from this point of view. Out of the joint khata of 244 kanals 8 marlas, 40 kanals had been sold by Zulfu alone who was an owner of Ith share but by a mistake the names of the trans ferees (or rather the transferees from transferees) alone were shown in the ownership column so that this land passed out of the joint khata so far as revenue records are concerned: Allah Dad son of Sadar Din defendant, the appellant before me, had stated in the trial Court that khasra No. 60 (which is the present number of those 40 kanals) fell to his share on a parti tion. The mutation regarding this partition has not been placed on the record, but I cannot assume that he refers to a partition of the joint khata of the descendants of Zulfu and Yara for this area had passed out of that joint khata and stood in the names of the transferees alone. Here it may be explained as to how Allah Dad son of Sadar Din who is a grandson of Zulfu has been allotted this land. He was co‑sharer in this land not because he is the grandson of Zulfu, for Zulfu had sold his rights, but because his father Sadar Din was one of those three persons to whom Dadu and Ilam Din, the trans ferees from Zulfu, had transferred the land by mutation Exh. P‑8 on account of the claim for pre‑emption. The previous suit, the judgment in which has been relied upon as constituting res‑judicata, had been filed by Allah Dad who claimed khasra No. 60 as having fallen to his share in partition, against Fazla and Allah Ditta sons of Baju as they were in possession of the land, and he got a decree for possession against them. It was not only open to Allah Dad and Fazla to plead in the previous suit that they had ith share in khasra No. 60 but it was their duty as persons in possession to put forward this defence. They did not do so and so far as they are concerned, they are barred by the rule of constructive res‑judicata. This decision, though given only between Allah Dad on the one hand and Fazla and Allah Ditta sons of Baju on the other will constitute res‑judicata in the present case so far as the 1/8th share of Fazla and Allah Ditta is concerned. Section 11 speaks of a matter directly and substantially in issue between the parties. Between whom it may be asked is the question of the his share of Fazla and Allah Ditta in dispute in the present suit? So far the other plaintiffs are concerned they are not interested in this 1/8th share. The rights of co‑sharers in a particular land are separate and independent and no co- sharer is interested in the right of another. The rights of Fazla and Allah Ditta, therefore, are not in dispute between the other plaintiffs and Allah Dad. Similarly the defendants other than Allah Dad are not interested in this 1/8th share. They do not claim any part of it and they could not have put forward such ,a claim as they are descendants of Zulfu who had parted with his share in khasra No.

60. Of course there was no legal bar to their claiming any part of this 1/8th share and had they claimed it the point would have to be decided on the merits. But that would happen if they put forward their own right. The parties really interested in the dispute as to this *th share are only Fazla and Allah Ditta on the one hand and Allah Dad son of Sadar Din, to whose share this land had fallen on partition, on the other. For the application of section 11 we have only to look to the persons between whom the matter is directly and substantially in issue in the present n suit. It is those parties that need have been parties to the previous litigation. According to same authorities the true effect of the previous judgment would be that it amounts to a transfer of the rights which Fazla and Allah Ditta had in khasra No. 60 to Allah Dad. I may quote here an extract from Bigelow on Estoppel (Sixth Edition, page 49) which deals with the matter.‑ " . . . . if all who have a right to appear and be heard in a cause have been duly made parties, the judgment estab lishes a perfect and complete right against all, as much as would a conveyance of a joint estate by all the parties interested. Judgment in an action strictly in personam, indeed, binds third persons in that way; all that is necessary is that all those who have the exclusive right to litigate the cause are proper parties to it, and that the question should he determined without collusion. Judgment that A is debtor of B is an example." It is not necessary to decide the correctness of this view. One thing is clear. The plaintiffs other than Fazla and Allah Ditta and the defendants other than Allah Dad even if they be allowed to plead the right of Fazla and Allah Ditta would be bound by any estoppel that exists against Fazla and Allah Ditta. A person who pleads the right of another is affected by all estoppels against that other and to this extent is deemed to claim under him. I would, therefore, hold that so far as khasra No. 60 is concerned, the matter is res‑judicata with respect to the 1/8th share of Fazla and Allah Ditta plaintiffs Nos. 5 and

6. This appeal is accepted to the extent that the suit of Fazla and Allah Ditta with respect to khasra No. 60 shall stand dismissed. There is no order as to costs. A. H. Appeal partly accepted.