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Civil Appeal No. 45 of 1954, (Regular First Appeal under section 77 of North West Frontier Province Law and Justice Regulation, 1901 (Regulation VII of 1901), decided on 12th October, 1957.

S. 11‑Co‑defendants ‑Res judicata‑Conditions.

An adjudication between the parties arrayed on the same side such as the co‑defendants will operate as res judicata only if all the following conditions are satisfied :‑(1) there must be a conflict of interest between the defendants concerned, (2) It must be necessary to decide the conflict in order to give the relief which the plaintiff claims, (3) the question between the defendants must be finally decided, (4) the co‑defendants were necessary or proper parties in the former suit and the adjudication is incorporated in the decree.

The Secretary of State for India in Council v. Swaminatha Koundan and another 12 I C 167, A. L. A. R. Chettyar Firm v. A. K. R. M. M. K. Chettyar Firm A I R 1936 Rang. 308, Maung Sein Done v. Man Nyun 10 Rang. 322, Maung Sein Done v. Man Nyun A I R 1932 P C 161, Munni Bibi v. Tirloki Nath A I R 1931 P C 114, Ghulam Ali Amir Khan v. Amir Khan and others A I R 1939 Pesh. 1, Shirimati Radharani Dassi v. Shirimati Binodamoves Dass A I R 1942 Cal. 92 and Syed Muhammad Saadat Ali Khan v. Mirza Ali Beg and others AIR 1950PC17ref.

S. 96‑Appeal lies against decree and not judgment.

S. II‑Decision on point which was not necessary for giving relief to plaintiff does not operate as res judicata.

S. 11‑Finding of Court not incorporated in decree‑No res judicata.

Hidayat Ali Taib for Appellants.

A. Manan Qureshi for Respondent No. 1.

Muhammad Iqbal for Respondent No. 3.

Date of hearing : 26th September, 1957.

‑Raja Muhammad Nazir Khan, a retired District and Sessions Judge of the defunct North‑West Frontier Province, died in Bannu on the 20th of July, 1950, leaving behind some movable and immovable property which can by no means be said to be very extensive. On the 30th of October, 1950, Ghulam Qadir and Ghulam Hussain who alleged themselves to be Raja Sahib's friends and companions, but who according to the defendants are his servants, instituted a declara tory suit against Mst, Shelin Taj Bibi and Sh. Barkat Ullah, who died during the pendency of the suit. He was replaced by his legal representatives Ziaullah, Zakaullah, Karamatullah, Sanaullah, Mst. Aimna Bibi, Mst. Rashida Begum, Mst. Sardar Begum, Mst. Riaz Begum, and Mst. Imtiaz Begum. The suit is to the effect that Raja Muhammad Nazir, prior to his death, had gifted away all his belongings, movable and immovable, in plaintiffs' favour, and that Raja Muhammad Nazir's heirs had no right to claim such belongings. They did no specify in their plaint as to what relationship did the two defendants bear towards the deceased, or who were his relatives who claimed the property as heirs.

The defendants in their written‑statements categorically denied the gift in favour of the plaintiffs. Each one of them, however, claimed to be the exclusive heir of the late Raja Sahib, denying the relationship of the other and for that matter his or her right to inherit the property. Mst. Sherin Taj Bibi asserted that she was his consanguine sister while Sh. Barkatullah denying that, claimed that he was his sole survivor being his first cousin.

The following issues were drawn up in the case :‑

(1) Is the suit maintainable in the present form

(2) Is the North‑West Frontier Province Government neces sary party to the suit

(3) Whether the deceased Raja Muhammad Nazir Khan had validly gifted the suit property orally in favour of the plaintiffs which gift was later on confirmed in writing

(4) In case issue No. 3 is proved, is the gift deed ineffective and illegal because of the objections maintained in para No. 8 of the written‑statements

(5) Is the gift deed inadmissible in evidence for want of stamp and registration

(6) To what shares, if any, are the defendants entitled in the suit property

(7) Relief

The Senior Sub‑Judge, Dera Ismail Khan dismissed the plaintiffs' suit on the 27th of February, 1954. On issue No. 6, after reviewing the entire evidence produced by the parties, he held that the evidence on the file was quite sufficient to lead one to the conclusion that Mst. Sherin Taj Bibi was the late Raja Sahib's sister. He repelled Sh. Barkatullah's claim that he was his first cousin.

Sh. Barkatullah's legal representatives have come up on appeal to this Court, claiming the property to the exclusion of Mst. Sherin Taj Bibi, Ghulam Qadir, one of the plaintiffs, has put in cross- objections.

A preliminary objection has been raised by the learned counsel appearing for Mst. Sherin Taj Bibi that the appeal is not competent in law. As regards the cross‑objections, it is contended by Sherin Taj Bibi's counsel and conceded by the learned counsel appearing for Ghulam Qadir that if the appeal is dismissed by upholding the preliminary objection, then the cross‑objections would automatically fail.

Right of appeal is a creature of a statute. In all suits of civil nature triable by the Courts under section 9 of the Civil Procedure Code, such right is created by section 96 of the same Code which run as under :‑

"Save where other wise expressly provided in the body of this Code or by any other law for the time being in force an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court."

I wish to lay special emphasis on the word "decree" occurring in this section. It is only the decree against which an appeal lies notwithstanding any decision arrived at in the judgment unless of course the judgment has itself the force of a decree.

The decree is defined in section 2, subsection (2) as the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. The forms of the decrees which are expected to be prepared in different suits are given in Appendix D of the Civil Procedure Code. In the case under discussion, although each of the two defendants denied the other defendants' claim to inherit the property of Raja Muhammad Nazir Khan, yet while striking the issues, the learned trial Court took it for granted quite erroneously that both of them were the heirs of Raja Muhammad Nazir and the only contest between them was with regard to the shares that each one was entitled to in law. This certainly was a very wrong approach to the question it dispute. An issue as to who was the heir of the deceased in case the plaintiffs failed should have been framed. Eventually, while giving the judgment, the learned trial Court found (without having any issue on the point) that Mst. Sherin Taj Bibi was the exclusive heir of Raja Muhammad Nazir. In the decree‑sheet, which was prepared, no mention of this fact was made and al: that was said was that the plaintiffs' suit was dismissed with costs. The decree, as it stands, therefore, is only appealable by the plaintiffs, because it is only their rights which are conclusively determined and for which the formal expression is given.

The matter, however, does not rest here. If the adjudication, though not incorporated in the decree, binds the parties arrayed on the same side, and operates as res judicata, then it will be unfair and against natural justice to hold that such an adjudication has become final and is not open to appeal by the aggrieved party. Section 11 of the Civil Procedure Code does not make any mention of the decree. It merely says that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. The question as to when an adjudication between the parties arrayed on the same side, such as the co‑defendants, may be resjudicata has been the subject‑matter of illuminating discussion in several authorities. It has been unanimously held, for that reason it may be said that it is now a‑settled law, that such an adjudication will operate as res judicata only if all the following conditions are satisfied :‑

(1) there must be a conflict of interest between the defendants concerned.

(2) it must be necessary to decide the conflict in order to give the relief which the plaintiff claims,

(3) the question between the defendants must be finally decided, and

(4) the co‑defendants were necessary or proper parties .in the former suit.

To these I will adds a fifth condition, namely, that the adjudica tion is incorporated in the decree, because I have already stated, b it is only the decree which confers a right of appeal on an aggrieved person and not the judgment.

The first case which has been cited before us in support of the above proposition of law is The Secretary of State for India‑in‑Council v. Swaminatha Koundan and another (12 I C 167). The facts of this case were that the plaintiff had taken a lease of the fishery rights in certain channels from the Government. He was obstructed in the exercise of his right by the first defendant and so he instituted a suit against such defendant and the Secretary of State for India as the second defendant, to have his right estab lished. The first Court dismissed the suit in toto. An appeal against this order met the fate. The Secretary of State went up on appeal to the Madras High Court where a preliminary objection was raised that the appeal was not competent because the decree appealed against was entirely in favour of the appellant. Upholding this objection their Lordships of the Madras High Court held that a party in whose favour a decree has been passed, has no right of appeal against it merely on the ground that he is aggrieved by a finding on one of the issues. Their Lordships observed that the right exists only when the decree itself or some finding necessarily implied in the decree has prejudiced the party wishing to appeal. The learned Judges opined that the adverse finding on one issue did not operate as res judicata as it was based on independent grounds and it was not implied in the decree so as to give the Secretary of State the right of appeal.

The second case which deals with the above proposition of law is A. L. A. R. Chettyar Firm v. A. K. R. M. M. k. Chettyar Firm (A I R 1936 Rang. 308), Mackney J. relied on Privy Council case Mating Sein Done v. Man Nyun (10 Rang. 322), equivalent to Maun Sein Done v. Man Nyun (A I R 1932 P C 161) wherein an earlier Privy Council case Munni Bibi v. Tirolki Nath (AIR1931 PC114) was quoted, and held that if a plaintiff cannot get at his right without trying and deciding a case between the co‑defendants, the Court will try and decide the case and the co‑defendants will be bound by the decision. But if the relief given to the plaintiff does not require or involve a decision a decision of any case between the co‑defendants, the co‑defendants will not be bound as between each other by any proceeding which may be necessary only to the decree the plaintiff obtains. In such a case three conditions are requisite, (1) there must be a conflict of interest between the defendants concerned, (2) it must be neces sary to decide this conflict in order to give the plaintiff the relief he claims, and (3) the question between the defendants must have been finally decided. The learned Judge, however, in the case before him came to the conclusion that all these three conditions were satisfied, particularly that in the previous suit it was necessary to decide what interest, if any one of the transferors had in the land in order to give the plaintiffs the relief they claimed.

To the same effect is the case Rura and another v. Banta and others (A I R 1938 Lah. 227) This case was originally heard by a Division Bench consisting of Dalip Singh and Skemp JJ. A difference of opinion arose between the two learned Judges as to whether a previous judgment operated as res judicata and so it was referred to Bhide J. It is not necessary to go into the merits of the case here, but as the principle of law enunciated above is concerned all the three Judges were agreed. The difference arose only with regard to their application to the facts of that particular case. The other cases in which the same view has been taken are Ghulam Ali Amir Khan v. Amir Khan and others (A I R 1939 Pesh.1), Shirimati Radharani Dassi v. Shirimati Binodamoves Dass (A I R 1942 Cal.) and Syed Muhammad Saadat Ali Khan v. Mirza Ali Beg and others (A I R 1950 P C 17).

Applying the law enunciated above, it will be quite apparent that the decision of the Senior Sub‑Judge Dera Ismail Khan in this case that Mst. Sherin Taj Bibi is the sister of Raja Muhammad Nazir and Sh. Barkatullah defendant bears no] relationship to him, will not operate as res judicata in any sub-sequent suit brought by any one of these persons for one main reason that it was not necessary to decide this point in order to give the relief which the plaintiffs claimed. It will not operate as res judicata also because this finding of the Senior Sub‑Judge is not incorporated it the decree.

The learned counsel appearing for the respondents has not quoted any authority giving a contrary view. In fact, he was quite satisfied if his appeal is dismissed on the preliminary ground provided it is held that the adjudication in this case on the matters in dispute between the two defendants will not operate as res judicata in a subsequent suit which his client might like to bring at some later time.

In view of the above discussion, I uphold the preliminary objection and hold that the appeal is incompetent. It is dismissed with costs. Cross objections also fail with costs. Pleader's fee Rs. 100.

‑I agree.

K. M. A. Appeal dismissed.

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