Budhua Kuar vs Sachit And Anr. on 20 May, 1886

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Allahabad High Court
Budhua Kuar vs Sachit And Anr. on 20 May, 1886
Equivalent citations: (1886) ILR 8 All 429
Author: Straight
Bench: Straight, Mahmood


Straight, Offg. C.J.

1. This is an appeal preferred by the defendant Sachit under the following circumstances: The suit was brought by the plaintiff-respondent to recover possession of a grove from the defendant by a declaration of the plaintiff’s title as reversioner, on the allegation that Sachit had made a sale of certain trees to the second defendant Ramphal Kuar. The plaintiff was the daughter of one Ramphal Pande, who died seven years ago, leaving a widow, Gulabi Kuar, a brother, Salik, and a daughter, who is the plaintiff in this case. Ramphal was separate from his brother Salik, and his estate therefore was inherited, first, by his widow Gulabi Kuar, who became life-tenant, and the plaintiff is entitled to succeed to the estate upon her mother’s death. In 1882 a suit was brought by Salik and Gulabi Kuar against Sachit for declaration of right and possession of the grove to which the present suit relates, and apparently after contest, the suit was decreed in favour of Sachit, and the claim of Salik and Gulabi Kuar was dismissed. If that was a genuine suit and was properly contested by the then plaintiffs, though Salik may have been improperly joined as plaintiff, still any decision then passed against Gulabi Kuar would be binding upon the present plaintiff, and estop her again litigating questions which were then decide. The authority for this view is the case of Katama Natchiar, 9 Moo. I.A. 543, and the portion of the judgment in that case to which I more particularly refer, will be found at page 608 of the report. The same principle was also recognized by myself in Adi Deo Narain Singh v. Dukharan Singh I.L.R. 5 All. 532. The plaintiff now comes into Court impeaching a transfer of certain trees by Sachit to the other defendant, Musammat Ramphal Kuar, and is met by Sachit with the plea that the question of proprietary title to the grove has already been determined by the suit of 1882 against Gulabi Kuar, the decision of which is binding upon the plaintiff and she cannot re-open it now. The Munsif was of opinion that this plea was good. The. Subordinate Judge took a contrary view. But it appears to me that in doing so he has stated very inadequate grounds for his conclusions, and has also lost sight of the real nature of the plaintiff’s claim and the language of the plaint. He has apparently not noticed the most essential point in the plaint, namely, that the plaintiff alleges that the proceedings of 1882 were fraudulent and collusive, and were got up between Salik and Gulabi on the one hand and Sachit on the other, and carried on for the purpose of improperly preventing the plaintiff from asserting her rights. This is a specific allegation of fraud and collusion; and if it is established, and even if the decree of 1882 did dispose of the question now sought to be re-opened, the decision in that suit would not be binding on the present plaintiff under the circumstances I have mentioned. This being so, it appears to me that the Judge has not tried the two main issues, which must be clearly determined before it is possible for us to dispose of this appeal. Before remanding these issues to the lower Court under Section 566 of the Civil Procedure Code, I may observe that, in my opinion, the principle which I enunciated in the case of Adi Deo Narain Singh v. Dukharan Singh I.L.R. 5 All. 532 should be applied to the present claim; and if it should turn out that there was fraud and collusion in the proceedings of 1882, and an attempt to interfere with the plaintiff’s right as reversioner to the grove on the death of her mother, she will be entitled in this suit to claim, not only a declaration of her right, but also to have the grove reduced into the possession of the life-tenant. It appears to me that we are competent to give such relief upon this form of plaint. I would therefore remand the following issues for determination by the Lower Appellate Court under Section 566 of the Code:

1. Did the suit of 1882 finally determine the question of the proprietary title to the grove now in suit between Gulabi Kuar and the present defendant Sachit?

2. Was such suit a genuine and bona fide proceeding, contested and litigated honestly from beginning to end?

2. The findings, when recorded,, will be returned to this Court, with ten days allowed for objections from a date to be fixed by the Registrar.

Mahmood, J.

3. I am of the same opinion. It appears to me that the case cannot be disposed of finally without ascertaining the two points which the learned Chief Justice has just formulated. The main point would be the conduct of Gulabi Kuar in the litigation of 1882; and whether her action was induced by collusion or other fraudulent motives, or by undue influence, the result would be the same. As regards the rule applicable to oases of this kind, I may refer to the judgment in Sant Kumar v. Deo Saran ante p. 365 in which the ruling of the Privy Council, to which the learned Chief Justice has referred, was applied. I also agree with what the learned Chief Justice has said in reference to the nature of the plaint in this case.

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