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Letters Patent Appeal No. 30 of 1953, decided on 18th November 1959.
S. II‑"Between the same parties or between parties under whom they or any of them claim"‑Scope‑Privies‑Ground of privity is property and not personal relation.
Under section 11 of the Civil Procedure Code, 1908 the judgments and decrees bind only parties and privies. A privy is a convenient term to describe a person who claims under a party. A privy who claims under a party is bound for he who takes the advantage must bear the burden, qui sentit commodum sentire debet et onus. However the ground of privity is property and not personal relation. To make a person privy he must have acquired an interest in the subject‑matter of action by inheritance, succession or purchase subsequently to the action or he must hold the pro perty subordinately e.g. as a sublessee.
Where a person's claim to the property is based on his connection with the common ancestor and he is claiming through him and not through his father was a party in the previous suit he is not bound by any decree given in the previous suit to ‑which is father was a party.
Ram Bhaj v. Ahmad Said Akhtar Khan and others A I R 1938 Lah. 571 distinguished.
Civil Procedure Code by Mulla 12th Ed. page 62 ref.
S. II‑Res judicata Between co‑defendants‑Conditions for application of doctrine.
The conditions for the application of doctrine of res judicata as between the parties who have been co‑defendants in a previous suit are there must be (1) a conflict of interest between the co‑defendants ; (2) the necessity to decide that conflict in order to give the plaintiff the appropriate relief ; and (3) a decision of that question between the co‑defendants. The doctrine may apply even though the party, against whom it is sought to be enforced, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification ‑must be added that if such a party is to be bound by a previous Judgment it must be proved that he had or must a deemed to have had notice that the relevant question was in. issue and would have to be decided.
Chandu Lal Aggarwalla and another v. Khalilur Rahman and others P L D 1949 P C 238 rel.
S. 100‑‑Finding as to ancestry o party‑Finding as to ancestry of party Finding of fact not open to challenge in second appeal.
Whether the property involved in a suit is ancestral or not can be a question of fact and law, but the same could not be said about the ancestry of a party. The finding as to the ancestry of a part is a finding of fact and is not open to challenge in a second appeal under section 100 of the Civil Procedure Code, 1908.
Imam Din v. Mst. Said BIN P L D 1948 P C 290 held not applicable.
Raja Said Akbar Khan for Appellants.
Muhammad Amin Khan for Respondents.
Iftikharul Haq Khan for Respondent No. 1.
Dates of hearing: 17th and 18th November 1959.
The sole question which falls for decision in this appeal is whether under section 11 of the Civil Procedure Code, Ahmad Ali, plaintiff respondent, is precluded from claiming a share in the estate of Ahmad Ali deceased son of Ghasita as a descendant of Roshan, common ancestor of the parties.
2. Briefly the relevant facts are that Roshan, the common ancestor of the parties, had two sons, Ghulam and Hassan. The former had a son Khuda Bakhsh, who had either two or three sons. According to the plaintiff, they were three, one of which Nura was his great grandfather while, according to the defendants‑appellants, they were only two, namely, Qada and Dadan, and Nura was a pachhlag of Khuda Bakhsh. Hassan's line terminated with Ahmad Ali son of Ghasita whose estate is in dispute in this case and the appellants are the descendants of Dadan. Some time before 1901 Qada died issueless an is estate was to en into possession by the descendants of Dadan alone. After some time Imam Din, Makhan and Lal Din, grandsons of Nura, instituted a suit against the descendants of Dadan claiming one‑fourth share in the estate of Qada on the allegation that during their absence from the village the defendants had wrongfully taken into possession the entire estate of Qada and that Daulu and Maulu sons of their paternal uncle, Khushi, who like them were entitled to one‑fourth share‑in the estate of Qada were colluding with the defendant and had not joined them in the suit. Either in view of the everment made in the plaint, or on the objection taken up by the respondents in their written statement the trial Court directed that Maulu and Daulu be impleaded as proforma defendants is the suit. In their written statements Maulu and Daulu acknowledged the correctness of the plaintiff's claim in the suit and added that they did not claim any share in the estate of Qada because their sister was married to the son of one of the contesting defendants and thereafter they took no part in the proceedings of the case. The contesting defendants controverted the plaintiff's claim; inter alia, on the ground that their grandfather, Nura was a pechhlag of Khuda Bakhsh and, as such, not a brother of Qada. The issue was decided in favour of the defendants and the suit of Imam Din and others dismissed. Copy of the judgment by the Subordinate Judge (Exh. D. 3) has been placed on the record from which we have gathered the facts stated above, otherwise the pleadings of the parties were not pro duced by either party. A copy of the written statement by Maulu and Daulu was produced by the appellant at the time of the admission of this appeal, but we did not find it necessary to admit it in evidence at this stage because the relevant portion of the written statement is incorporated in the judgment (Exh. D. 3) in extenso. The appellants also applied to place on record a copy of the judgment passed by the Additional District Judge on appeal in that case, but we did not allow this to be done because no proper case for admitting additional evidence was made out and the judgment was no more helpful in determining the true facts of the case than the judgment of the trial Court (Exh. D. 3). This is so far as the proceedings in the previous suit are concerned.
3. Turning now to the present suit, Ahmad Ali son of Ghasita died some time ago leaving him survive a widow Mst. Jan Bibi, who succeeded to his estate for her life time under custom. She died in 1947 and a dispute arose between the parties regarding the distribution of the estate of Ahmad Ali. Defendants l to 11 sought to exclude the descendants of Nura, including Ahmad Ali plaintiff‑respondent, from the inheritance of Ahmad Ali deceased on the ground that they were not the descendants of their common ancestor, Roshan. On this Ahmad Ali, one of the sons of Daulu, instituted the present suit claiming 1/16th share in the estate of Ahmad Ali and one of the issues raised in the suit was whether the decision in the suit instituted by Imam Din and others in 1901 to which Maulu and Daulu were parties that Nura was a pechhlag son of Khuda Bakhsh operated as res judicata against the plaintiff. The issue was answered in the negative by the trial Court and the finding affirmed by the District Judge on appeal by defendants 1 to 11. On a further appeal to this Court our learned brother Khurshid Zaman, J., also came to the same conclusion, aggrieved by which defendants 1 to 11 have come up in a further appeal under Clause 10 of the Letters Patent before us.
4. Raja Said Akbar, learned counsel for the appellants, has taken considerable time in discussing the elements of res judicata, the special conditions which apply in the case of co‑defendants and the doctrine of constructive res judicata. The substance of his argument was that the plaintiff‑respondent could not claim any share in the estate of Ahmad Ali deceased unless he was proved to be a descendant of Roshan. While establishing this he must prove that Nura was son of Khuda Bakhsh and this he could not be permitted to show because of the finding in 1901 suit, to which his father, Daulu, was a party. When faced with the question, Fu whether in the present suit the plaintiff' claimed his rights through A, his father Daulu, the logic of the learned counsel, however, broke down for he had to admit that the plaintiff was claiming through Roshan, the common ancestor, but nevertheless he went on to argue most vehemently and in all seriousness that the plaintiff's claim that he was the descendant of Roshan depended on his being the son of Daulu and, therefore, for the purposes of section 11, C. P. C. he was claiming through him and, as such, was a privy to the previous suit. In support of‑the contention a good number of authorities were cited, all of which were beside the point and need not be noticed except Ram Bhaj v. Ahmad Said Akhtar Khan and others (A I R 1938 Lah. 571) which, on first impression, appeared to support him. A careful perusal of the judgment, however, shows that the decision in that case is based not on the provisions of section 11 but on the general principle that a party, and those claiming through him, cannot be permitted to approbate and reprobate. In the present case Daulu said nothing on the point at issue before us but, assum ing that he claimed that Nura was son of Khuda Bakhsh, the plaintiff' is reiterating the stand taken up by his father and not departing from it. The dictum of Din Muhammad, J. in Ram Bhaj v. Ahmad Said Akhtar Khan and others has, therefore, no application to the facts of this case. The relevant words in sec tion 11, C. P. C. are "between the same parties, or between parties under whom they or any of them claim, litigating under, the same title", and in discussing their scope Mulla in twelfth edition has stated thus:‑--
"This condition is the principle that judgments and decrees bind only parties and privies. A privy is a convenient term of English Law to describe a person who claims under a party Latham, J., in a Bombay case classified persons other than parties as (1) privies, (2) persons not claiming under parties but represented by them, and (3) strangers. The ground of privity is property and not personal relation. To make a person a privy he must have acquired an interest in the subject‑matter of action by inheritance, succession or purchase subsequently to the action or he must hold the property subordinately e.g. as a sublessee.
A privy who claims under a party is bound for he who takes the advantage must bear the burden‑qui sentit commodurn sentire dabet et onus."
5. The plaintiff's claim in the present suit is based on his connection with the common ancestor. He is therefore claiming through him and not through his father, Daulu though his relationship with the common ancestor can be established only if he is Daulu's son. We are, therefore, clearly of the view that as the plain is not claiming this property through Daulu he is not bound by any decree given in 1901 suit.
6. There is yet another aspect o the case which clinches the whole issue against the appellants. According to the dictum of their Lordships of the Judicial Committee in Chandu Lal Agarwalla and another v. Khalilur Rahman and others (AIR 1950 P C 17 : P L D 1949 P C 238) the conditions for, the application of doctrine of res judicata as between the parties who have been co‑defendants in a previous suit are : there must be (1) a conflict of interest between the co‑defendants, (2) the neces sity to decide That conflict in order to give the plaintiff the appro priate relief, and (3) a decision of that question between the co‑defendants. The doctrine may apply even though the party, against whom it is sought to enforce it, did not in the previous suit think fit to enter an appearance and contest the question. But to this the qualification must be added that, such a party is to be bound boy a previous judgment, it must be proved clearly that the had or must be deemed to have had notice that the relevant ques tion was to issue an would have to a decided. In the 1901 suit Imam Din and others had claimed possession of one‑fourth share in the estate of Qada and did not claim anything for or on behalf of Daulu and Maulu. To the contrary it was asserted that they had declined to join the plaintiff in the suit on account of collusion with the defendants. Daulu and Maulu, who were joined as proforma defendants subsequently under the directions of the Court, did not ask for any relief in the suit against their co defendants. Indeed they could not have asked for any unless they were transposed as plaintiffs or instituted a separate suit. They file. their written statements, acknowledging the plaintiff's claim against their co‑defendants and made their exit from further pro ceedings in the suit. In the plaint there was no averment that the contesting defendants had denied that Nura was the son of Khuda Bakhsh and the written statements in which the contesting defendants had raised this plea was not served on Maulu and Daulu, and they were not required to reply to it. It is, therefore not at all proved in the case that Daulu and Maulu had notice of the contention‑raised h their co‑defendants that Nura was not the son of Khuda Bakhsh an , in the absence of this knowledge they themselves were not estopped from challenging the finding given in that case against Imam Din and others. In fact there was no conflict of interest between Maulu and Daulu on one hand and the contesting defendants on the other because the former did not claim against the latter any share in the inheritance of Qada. The decision in the 1901 suit that Nura was not the son of Khuda Bakhsh was, therefore, not res judicata in the present suit.
7. On merits the concurrent finding arrived at by the two Courts e tow t. at Nara was the son of Khuda Bakhsh was no open to challenge in a second appeal under section 100, Civil Code, but Raja Said Akbar in is characteristic manner, made a bold statement that if the ancestry of a party was to be inferred from a large number of documents, including pedigree table and revenue records, the finding was one of law and could be challenged in a second appeal in the High Court. In support of it, he relied on Imam Din v. Mst. Said Bibi (AIR 1949 PC 87: PLD 1948 PC 290) in which one of the issues raised was whether the suit‑ property was ancestral. The District Judge in e affirma tive, but on second appeal the High Court had reversed the finding. This was objected to by the counsel for the appellant a ore their Lordships on the ground that by virtue of section 41, Punjab Courts Act which was similar to section., no appeal lay from that finding. The contention was repelled on the ground that in the first instance the District Judge had committed an error of law in disregarding the settlement of 1856, and in the second place a finding as to the ancestral character of land which is based upon the perusal, construction and‑piecing together of a large number of revenue records cannot be regarded as a finding of fact. Whether the property involved in suit is ancestral or not can be a mixed question of fact and law but the same could not be said about the ancestry of a party. The issue raised in the present case whether Nura was son of Khuda Bakhsh or his pichhlag was one of fact and no question of law arose for its determination. The authority cited by the learned counsel has, therefore, no application to the facts of this case.
8. In the view expressed above, we find no force in this appeal and dismiss it with costs.
K. B. A. Appeal dismissed.
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