P L D 1967 Supreme Court 559 (PLP)

HAMOODUR RAHMAN, J.

‑This appeal has come before us under a certificate granted by the High Court of West Pakistan, Lahore, under Article 158 of the Late Constitution read with section 110 and Order XLV, rule 3 of the Code of Civil Procedure on the ground that the value of the subject‑matter of the suit in the Court of first instance and on appeal to this Court is Rs. 15,

000. This appeal arises out of a suit for possession of certain lands on the basis of inheritance. The lands forming the subject‑matter of the dispute consisted of about 448 kanals and 13 marlas situated in Chak No. J. B., Tehsil Toba Tek Singh, District Lyallpur. These lands originally belonged to one Mehtab, son of Nathu, caste Jat Kahlon. It is not clear when Mehtab died but at the time of his death he left him surviving a widow Mst. Pariah Bibi and a minor son Muhammad Din. Muhammad Din died unmarried and issueless sometime in 1924 and after his death his mother Mst. Panah Bibi was mutated as the owner of the property by a mutation decided on the 5th of August 1924. After this Mst. Panah Bibi purported to gift away the entire lands and Ihatas by a mutation entered on the 10th of February 1926, to one Faqir Muhammad, her sister's husband and his son Siraj Din. The present appellant thereupon claiming to be a presumptive reversioner filed a suit on the 9th of February 1928, against Mst. Panah Bibi and her donees for a declaration that the purported gift by Mst. Panah Bibi as the holder of the life‑estate under custom would, in no way, affect the rights of the reversioners after the death of Mst. Panah Bibi. He based his claim to be a reversioner on the basis of the following pedigree‑table:

I I Mehtab=Mst. Panah Bibi Fateh (defendant No. 3) I I I Muhammad Din Allah kakha (died a bachelor) (plaintiff) The defendants in that suit denied that the plaintiff was a reversionary heir of Muhammad Din. An issue was, therefore, framed to the following effect:‑

Whether the plaintiff is the reversionary heir of Muhammad Din, the last male‑holder?" The appellant, as plaintiff in that case, adduced only oral evidence in support of his claim to be the presumptive reversioner of Muhammad Din. Even the pedigree‑table set up by him in the plaint was one which had been prepared by a Jaddi Mirassi. The Senior Sub‑Judge, Lyallpur, who decided the case on the 16th of November 1928, came to the conclusion that since the plaintiff had not produced the best evidence available he "has not been able to prove if he is the reversionary heir of Muhammad Din, the last male‑holder." The suit was, accordingly, dismissed with costs. Nothing further was done by the appellant thereafter during the lifetime of Mst. Pariah Bibi. She died in February 1951, and within a month thereof the appellant, on the 6th of March 1951, filed a suit, out of which the present appeal arises, claiming the entire property as heir of Muhammad Din under the Muslim Shariat Law, which had by then become applicable by the enactment of the Muslim Personal Law (Shariat) Application Act, 1948. The appellant, who filed the suit in forma pauperis, of course claimed the entire land, alleging that the gifts and the mortgages made by Mst. Panah Bibi during her lifetime were invalid and of no effect as against him. The donees and mortgagees of Mst. Panah Bibi were made defendants in the suit but the suit was contested by only Faqir Muhammad and Siraj Din, the donees of Mst. Panah Bibi. They denied all knowledge of the pedigree‑table set out by the appellant in his plaint and contended that they only knew that the appellant had formally brought a suit for the cancellation of the gift in their favour of the lands in dispute and that suit had been dismissed on the 16th of November 1928. According to them, therefore, the present suit was barred under the rule of res judicata. They also contended that Mst. Panah Bibi became the absolute owner by virtue of inheritance and was not the holder of a mere life -estate under custom. The mortgagee defendants did not contest the suit. In this plaint the pedigree‑table set out was as follows;‑

I I Fatka Mehtab‑‑Mst. Panah Bibi I Muhammad Din

I I I Mst. Umar Bibi Resham Bibi Allah Rakha plaintiff plaintiff plaintiff This time in support of this claim the appellant also filed documentary evidence which consisted of a pedigree‑table of village Thatta, Tehsil Narowal, prepared at the settlement of 1915‑16 as also a pedigree‑table for another Mauza of Tehsil Narowal which was attached to the Jamabandi for the year 1945‑

46. Mehtab's family was originally residents in village Thatta and these pedigree‑tables showed that Mehtab had left a minor son called Faqir and that Mst. Panah Bibi was in possession of the lands left by Mehtab as the mother of Faqir. The appellant's case was that Muhammad Din was also known as Faqir. The pedigree‑table prepared in 1915‑16 also showed that one Allah Rakha was the son of Fatta, a brother of Mehtab. In addition to this it appears from the Jamabandi of the year 1924‑25 (Exh. P. 4) relating to the lands in dispute that a pedigree‑table was also given at its end showing :‑

I I Mehtab=Mst. Panah Bibi Fat a, Dead Dead Alive I I I Muhammad Din Allah Rakha He has died Alive Again from the application for mutation (Exh. P. 6) made by Mst. Pariah Bibi, when she purported to make the gift in favour of her sister's husband and son, it appears that then too a similar pedigree‑table had been prepared. On this evidence the trial Court held that the appellant was the son of Fatta who must be accepted as a real brother of Mehtab. Hence the appellant was the first paternal cousin of Muhammad Din, the last full owner of the property in suit. Under the Shariat Law, therefore, Mst. Panah Bibi was to get 1/3rd, the remaining 2/3rd was to go to Allah Rakha, the appellant, as their residuary heir. His sisters were, however, held not to be entitled to any share in these properties. As to the plea of res judicata raised on the basis of the dismissal of the previous suit of 1928 the trial Court, relying upon two decisions in the cases of Taj Singh and others v. Chaudhari Hannu Prasad and others (A I R 1940 All. 433) and Ali Muhammad v. Karim Bakhsh and others (A I R 1933 Lah. 943), held that the dismissal of the previous suit for the usual declaration under customary law did not debar a subsequent suit for possession instituted after the death of the life estate‑holder. In its view since the suit for possession was based upon a fresh cause of action it could not be hit by the plea of res judicata. The appellant's suit was accordingly decreed and he was held to be entitled to a 2/3rd share in the lands and Ihatas belonging to Muhammad Din. The respondents Siraj Din and Faqir Muhammad went up in appeal to the High Court where the only point argued was that the previous judgment operated as res judicata and, therefore, the second suit by the appellant had to be dismissed. This contention found favour with the High Court which took the view that the trial Court was wrong in thinking that for the application of the rule of res judicata it was necessary that the cause of action should be the same in both the suits. It was sufficient that the question of the status of the appellant was also in issue in the first suit and had been decided against him. This question was thus res judicata in the second suit and could not be reopened. The. High Court also found support for its view from the cases of Krishna Behari Roy v. Brojeswari Chowdranee and others (2 IA 283), Ananta Balacharya v. Dainodhar Makund (I L R 13 Bom. 25) and Fateh Singh and others v. Jagannath Bakhsh Singh and another (52 I A 100). Another contention raised before it was that even if the cause of action be different and the subject‑matter of the suit be different yet in order to attract the rule of res judicata it was necessary that the parties should be litigating under the same title and since in the present case the appellant was not litigating and the same title the rule had no manner of application. The High Court repelled this holding that since it had held that "status once determined is res judicata, it would follow that a question of status once decided in a suit for a declaration by a reversioner would be binding even in a subsequent suit for possession". The decision of the trial Court was, therefore, reversed and the appellant's suit was dismissed leaving the parties to bear their own costs. It is from this judgment that the appellant has now come up on appeal to this Court and it is contended on his behalf that the High Court had fallen into error in taking the view that his suit was barred by res judicata on account of the dismissal of the previous suit of 1928. It is argued that section 11 of the Code of Civil Procedure expressly provides that the subsequent suit must not only be between the same parties as in the former suit but also between parties who are or under whom they or any of them are "litigating under the same title." It was necessary, therefore, before the rule was made applicable, also to find that the parties in the second suit are litigating under the same title as in the previous suit. In the instant case, it is pointed out that the first suit filed by the appellant was only in a representative capacity as a person claiming to be only a presumptive reversioner, for, in 1928 he had neither any right to possession of the lands nor to claim either as the next reversioner or as an heir under the Muslim Shariat Law which latter became applicable only upon the termination of the life estate by the death of Panah Bibi in 1951. The right to claim as an heir could not possibly have been asserted in 1928. The subsequent suit was, therefore, on the basis of a new and independent right and in a totally different capacity as an heir under the Muslim Law, and, therefore, he could not be said to be litigating under the same title. The High Court relying upon a decision in the case of Rafiq‑un‑nissa Bibi v. Abdul Shakur Khan and others (A I R 1929 All. 400), held that the expression "litigating under the same title" had reference only to "the capacity in which a person has been impleaded as a party to a suit'. Although it was prepared to concede that "in spite of the fact that the person impleaded is the same, the decision given in one suit cannot be res judicata in the other suit, because, the title under which the person was litigating was not the same" yet it went on to hold that the expression "litigating under the same title" cold not possibly have reference to the "right which is involved in a suit." The question, therefore, arises as to whether the High Court was right in taking the view that, when a presumptive reversioner files a suit for a declaration that certain alienations by the holder of a life‑estate are ineffective as against him and then files a suit for the possession of the property after the death of the holder of the life‑estate, the two suits are filed in the same capacity, although in' different rights? Even in the case of Rafiq‑un‑nissa Bibi, which was relied upon by the High Court, it was observed, while determining the meaning of the expression "litigating under the same title" that it "refers to the capacity or interest of a party, that is to say, whether he sues or is sued for himself, in his own interest, or for himself as representing the interest of another or as representing the interest of others along with himself. It has nothing to do with the particular cause of action on which he sues or is sued." In this connection reference was also made to a passage from a book on res judicata by Bower for elucidating this point. This passage reads as follows:‑

"A party who, though identical in name, litigates in different characters‑ in the two proceedings, is, in contemplation of law and in the correct sense of the civilians, two separate and distinct persons, so that a decision for, or against a man who appears in a representative character, is not conclusive in favour of, or (as the case may be) against the same man appearing in subsequent proceedings as an individual, or in a different representative character. Conversely, two persons distinct in name, but substantially identical in title and interest, constitute in law one and the same party for the purposes of estoppel by res judicata, as for all others." It is now conceded by learned counsel that the difference in the cause of action is not conclusive on this question of title but it is, nevertheless, maintained that a suit filed by a presumptive reversioner to set aside an alienation by a life estate‑holder is a suit purely in a representative capacity, as has been held even by the Privy Council in the case of V. Venkatanarayana Pillai v. V. Subbammal and another (42 I A 195), where Mr. Ameer Ali, while delivering the opinion of the Board, observed that a suit instituted by the presumptive reversioner in the lifetime of a female owner for a declaration that an alienation effected by her is not binding against the inheritance is not a suit for his personal benefit, for, "the object is to remove a common apprehended injury to the interest of all the reversioners, presumptive and contingent alike". The right to sue in such a case is based on the danger to the inheritance common to all the reversioners which arises from the nature of their right, as in the lifetime of the limited owner the reversionary right is a mere possibility and only a spes successionis. This possibility is common to all the reversioners, presumption or contingent, "for it cannot be predicated who would be the nearest reversioner at the time of her death." If this be the true nature of such a suit then will it not be more correct to say that the question that was in issue in the suit filed by the appellant in 1928 was only as to whether the plaintiff therein was the then presumptive reversioner while the question now is as to whether the plaintiff is a legal heir of the last male‑‑owner under the Muslim Shariat Law? If so, can the decision of the former question conclude the latter? During the lifetime of a limited owner the reversioner has no right even to sue for a declaration that he is the next reversioner. As a presumptive reversioner he has a right to sue only in a representative capacity, representing the entire body of reversioners, for a declaration that the alienation by the limited Owner is not binding on the next reversioner, whoever he might be. He is not in such a suit vindicating any individual personal right. Thus even though it may happen, as in the instant case, that his status as a reversioner is disputed in the prior suit and actually put in issue yet what has to be remembered is that the only declaration that could have been made in the prior suit was either that he was a presumptive reversioner or that he was not such a presumptive reversioner. No decision could have been given in such a suit of even his or anyone else's right as the next reversioner, for, such a decision would clearly be premature during the lifetime of the limited owner and might even be futile as no one could possibly then have predicated as to who would be the next reversioner at the time of the death of the female owner. Any decision, therefore, either express or implied, that the plaintiff was or was not the presumptive reversioner on the date of the prior suit cannot, in my opinion, be conclusive on the question of the plaintiff's title or status as next heir or legal heir of the last male owner after the death of the limited owner. The title and status asserted by the appellant in the subsequent suit was, therefore, necessarily different from and independent of, the title and status put forward by him in the earlier suit. The claim in the subsequent suit was based on his own individual right in the capacity of an heir which could not possibly have been included in the earlier suit filed in the capacity of only a presumptive reversioner. The prior decision cannot, therefore, in my opinion, be rightly relied upon as being res judicata on the question of the plaintiff's title to the property as heir at law. This view finds support also from a Full Bench decision of the Lahore High Court itself in the case of Mst. Sardaran v. Shiv Lal and others (A I R 1944 Lah. 282), where the principle enunciated was that "where the right claimed in both suits is the same the subsequent suit will be barred as res judicata, though the right in the subsequent suit is sought to be established on a ground different from that in the first suit. If the rights claimed, however, in the two suits are different, tile subsequent suit will not be barred as res judicata simply because the property is identical." This was a case in which the first suit was for enforcing a charge for the betrothal and marriage expenses of a daughter and the second suit was by the same slaughter claiming a one‑sixth share in the same properties. The second suit was held not to be barred by res judicata on the ground that the second suit was not a suit for the same right that was litigated upon in the first suits." The same arguments which have found favour with the High Court in the present case were also advanced there but the Full Bench repelled it saying:‑

"If a person brings the first suit in his individual capacity and the second suit as a trustee he is undoubtedly litigating under a different title in the second suit. There can, however, be instances of a person instituting two suits one after the other in his individual capacity with respect to the same property and still the second suit may amount to litigating under a different title than the first. For instance, where the first suit was to redeem one mortgage it does not bar a second suit the redeem a mortgage of a different date, though the property sought to be redeemed and the principal amount of the mortgage are identical. The first suit may be brought by a plaintiff based merely on the relationship of landlord and tenant between himself and the defendant. The second suit may be based on his title as owner. In these circumstances, the second suit would not be barred by the doctrine of res judicata." This principle has since been approved by the Supreme Court of India also in the case of Sunderabai v. Devaji Sharikar Deshpande (A I R 1954 S C 82), wherein it has been observed that the above Full Bench decision brought out "the real ratio governing such class of cases." If this be so then can it be said that in the second suit filed by the appellant in the present case the right claimed was the same as that in the first suit? I think not. Learned counsel for the appellant has also pointed out that the High Court's reliance on the case of Fateh Singh and others v. Jagannath Bakhsh Singh and another as laying down a principle which would be decisive on the point which arises for consideration in this case, appears to be unjustified, for that case really proceeded upon a different question, namely, as to whether under Explanation 4 to section 11 of the Code of Civil Procedure a right on the basis of custom which ought to have been set up in the former suit and was not so set up could be set up in a subsequent suit. The facts of that case were that in a suit filed by some presumptive heirs to set aside a gift made by a Hindu widow, the widow died during the pendency of the suit. The plaint was then sought to be amended by setting up a family custom of inheritance and claiming on that basis possession of a share. The application for amendment was refused and the suit was dismissed but with liberty to file a fresh suit for possession. Subsequently when the second suit for possession was brought it was held that the suit was barred by res judicata under Explanation 4 to section 11 of the Code of Civil Procedure. The Judicial Committee there based its decision upon the ground that "one of the alternative cases on which they were basing their title to sue", in the; prior suit, "was their nearness of kin, and to prove their nearness of kin it was essential to aver the family custom. They claimed as next heirs and their claim was dismissed. They cannot fight it over again." Thus the real reason for holding that the subsequent suit was barred was that the claim as next reversioners on the footing of the family custom was a claim which might and ought to have been made within the meaning of Explanation 4 to section 11 of the Code of Civil Procedure in the first suit. In that case, therefore, the Judicial Committee did not enter into any discussion of the meaning of the expression "litigating under the same title". The next case of Ananta Balacharya relied upon by the High Court was a case in which in a prior suit relating to different properties the parties had set up an amicable partition of the joint family properties under a Memorandum of agreement of partition. The partition was denied and the 'defence was that the family was still join. An issue was raised in the suit to determine as to whether a partition had in fact taken place effecting severance of a joint family. The Court found in the affirmative. In the second suit between the same plaintiffs and the heirs of the defendants in the former suit to recover posses sion of certain properties of which they alleged they had been dispossessed after possession had been given to them as a result of the family partition. The defendants again attempted to set up the plea that there had been no partition of the family properties. It was in those circumstances that it was held that the question of partition was res judicata and could not be raised over again, as it had been not only directly and substantially in issue in the former suit but also it had been decided therein between parties litigating under the same title. The case of Krishna Behari Roy, it is true, does contain an observation by the Judicial Committee to the effect that "where a material issue has been tried and determined between the same parties in a proper suit and in a competent Court, as to the status of one of them in relation to the other, it cannot be again tried in another suit between them", but there too what had happened was that in a subsequent suit by a reversionary heir to have an adoption by a Hindu female set aside the defence had taken the plea that since the validity of the adoption had been decided in an earlier suit in which the plaintiff in the subsequent suit had intervened in his capacity as a reversionary heir and challenged the validity of the adoption the second suit must fail. The plea was accepted as the validity of the adoption had already been decided in an earlier suit in which the plaintiff had intervened in the same capacity, namely, as a reversionary heir and was thus litigating under the same title. Even in this case the interpretation of the expression "litigating under the same title" did not come up for consideration but the facts disclose that in both the two suits the party was claiming in the same capacity, namely, as a reversionary heir. There seems to be substance, therefore, in the contention of the appellant that in deciding this question the High Court had failed to take into account the fact that the second suit was not filed by the appellant herein in the same capacity. I am, for the reasons given above, of the view that the two suits were filed in entirely different and separate capacities and, therefore, the rule of res judicata was not at all applicable in the facts of this case. I would, therefore, allow this appeal, set aside the judgment and decree of the High Court and restore the decree of the trial Court. I am also satisfied that the evidence on the record fully supports the findings of the trial Court and establishes that the appellant Allah Rakha is a son of Fatta, who was a real brother of Mehtab, the father of Muhammad Din. Under the Muslim Shariat Law the appellant as a paternal cousin of Muhammad Din was thus entitled to inherit from him as a residuary. Since the only other surviving heir of Muhammad Din was Mst. Panah, his mother and her legal share was 1/3 the balance 2/3 would go to the appellant. The 1/3rd of Mst. Panah Bibi would be inherited by her personal heirs and not the heirs of Muhammad Din. The decree passed by the trial Court was, therefore, a proper decree which ought to have been upheld by the High Court. I would also allow the appellant his costs in this appeal. S. A. RAHMAN, J.‑‑I agree. FAZLE‑AKBAR, J.‑I agree. A. H. Appeal allowed.