GHULAM MUHAMMAD Versus MST. MUMTAZ BEGUM THROUGH LEGAL HEIRS
This civil revision has arisen out of a suit brought by the petitioner, Ghulam Muhammad against Mst. Mumtaz Begum and Zubair Ahmad. It was alleged by the petitioner that Mst. Mumtaz Begum agreed to sell 2 Marlas of land to him and also executed an agreement deed in this behalf but declined to transfer the said land to him when she was required to do so. It was further pleaded by him that she had leased out the land in dispute to the said Zubair Ahmad. He, therefore, prayed for decree for possession of the land in question. In reply, it was denied by Mst. Mumtaz Begum that she had executed the said agreement deed and also raised the plea of res judicata stating that earlier a suit based on the agreement deed in question had been dismissed by a Civil Judge and his judgment had also been upheld in appeal. Her plea of res judicata found favour with Civil Judge before whom the suit for possession was instituted. That suit was, therefore, dismissed. The petitioner went in appeal before an Additional District Judge but without success. Hence this civil revision.
2. It was contended by the petitioner that provisions of section 11 of the Code of Civil Procedure were not attracted to his case because in the suit giving rise to this civil revision there were two defendants, namely, Mst. Mumtaz Begum and Zubair Ahmad but in his earlier suit there was only one defendant, namely, Mst. Mumtaz Begum. Mst. Mumtaz Begum has since died and her legal representatives have been brought on the record. While replying to the above argument of the petitioner, it was submitted by learned counsel for the legal representatives of Mst. Mumtaz Begum that Zubair Ahmad was allegedly a tenant under Mst. Mumtaz Begum qua the land in dispute and, therefore, his presence in the subsequent suit as a party was of no avail to the petitioner.
3. Section 11 of the Code of Civil Procedure, which embodies the principle of res judicata, reads as under: --
"11. Res judicata .--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 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.
Explanation I .--The expression former suit shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
ExQI-anation II .--For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III : --The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV: --Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V: --Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Emlanation. VL ---Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the person so litigating."
It is evident from the opening provisions of section 11 of the Code of Civil Procedure that a suit would be hit by the principle of res judicata even if a party to subsequent suit was not a party to the former suit but claims under a party to the former suit. In the instant case, according to the petitioner himself, Zubair Ahmad was claiming under Mst. Mumtaz Begum inasmuch as he had been shown as a tenant of Mst. Mumtaz Begum by the petitioner himself. Undoubtedly, Mst. Mumtaz Begum was a party in the former suit as well as in the subsequent one. The petitioner cannot, therefore, claim exemption from operation of the provision of section 11 of the Code of Civil Procedure on the ground of his impleading Zubair Ahmad also as a party to the subsequent suit. In this view of the matter, Zubair Ahmad's involvement in the subsequent suit is of no help to the petitioner.
4. It is not denied that substantial question which was directly involved in the two suits referred to above was with regard to the agreement deed alleged to have been executed by Mst. Mumtaz Begum. It was held in the former suit that the said deed was not genuine. Section 11 of the Code of Civil Procedure, therefore, did not permit the Court, which was seized of the subsequent suit, to go into the question of the genuineness or otherwise of the agreement deed in dispute.
5. As indicated above, there is concurrent finding` of they two Courts below that the subsequent suit brought by the petitioner was barred by res judicata. The petitioner has not pointed out anything to enable me to disturb that finding. I am, therefore, unable to interfere in this case.
6. Resultantly, this civil revision fails. It is accordingly, dismissed with costs.
A.A./G-2/L Revision dismissed.