JUDGMENT V. N. Singh, J.
1. Appeal has been filed against the judgment and decree dated 7.8.1976, passed by Sri Kishen Lal, the then VII Addl. District Judge, Allahabad in Civil Appeal No. 505 of 1973, Abdul Alim v. Mst. Karimunnisa and Ors., arising out of original suit No. 773 of 1970 decided by Sri Achal Bihari Srivastava, the then IV Temporary Civil and Sessions Judge, Allahabad on 11.9.1973.
2. Brief facts of the case is that Original Suit No. 773 of 1970 (Munsif West) Allahabad, was "filed by Abdul Alim for ejectment of the defendant from the upper portion of the house in suit and for closure of the door in the southern wall of the house and recovery of Rs. 200 as damages.
The house in dispute was given to his wife Smt. Azimunnisa Bibi and daughter Smt. Saliman. Smt. Azimunnisa by a sale deed dated 29.4.1946 registered on 3.8.1946 transferred her share to Jamaluddin for a sum of Rs. 350.
By registered sale deed dated 23.9.1946 Smt. Saliman sold her entire share in favour of Rahim Bux son of Sheikh Mahngoo for a sum of Rs. 400.
Smt. Karimunnisa is the wife of Rahim Bux.
The share of Jamaluddin which was purchased from Smt. Azimunnisa devolved upon Smt. Ahmadunnisa and her three sons and two daughters.
Smt. Ahmadunnisa alone transferred the entire house including disputed portion by means of registered sale deed dated 20.10.1957 in favour of Abdul Alim (present plaintiff) for a sum of Rs. 500 on her behalf and on behalf of other minor heirs.
3. Appellant Smt. Karimunnisa has filed Original Suit No. 239 of 1954 on 1.11.1954 against Ahmadunnisa wife of Jamaluddin and others for their eviction on the ground of relationship of landlord and tenant.
In the said suit, it was alleged by appellant Smt. Karimunnisa that she along with defendant Nos. 8 to 13 of that suit, being her sons and daughters are owner of half share of the southern side of the upper portion of old house No. 193 and that defendant No. 1 Smt. Ahmadunnisa and others defendant Nos. 2 to 7 are tenants at the rate of Rs. 10 per month.
It was alleged that southern half portion of the house No. 193 was transferred by registered sale deed dated 23.9.1946 in favour of Rahim Bux, husband of appellant Smt. Karimunnisa by Smt. Saliman Bibi.
The relief sought for in the suit was for eviction and possession.
4. Suit No. 239 of 1954 was decided on 13.9.1956 by the then IInd Addl. Munsif, Allahabad, Sri K. K. Birla, by which the suit was decreed and it was declared that plaintiff is owner of the half portion of the house in suit.
Against the said judgment Civil Appeal No. 374 of 1956 was filed and was decided by the then J.S.C.C., Allahabad, Sri Mohd. Tufail Ahmad on 29.8.1959 by which he allowed the appeal, set aside the judgment and decree of the learned Munsif and dismissed the suit.
Smt. Karimunnisa and her children against the judgment and decree of Shri Mohd. Tufail Ahmad, the then J.S.C.C., Allahabad, dated 29.8.1959 preferred second appeal No. 505 of 1959, which was dismissed on 5.7.1966 by Hon'ble Justice B. D. Gupta, J., with the following observations :
"In view of the recitals as regards the boundaries given in the two sale deeds relied upon by the plaintiff herself, it is manifest that the conclusion recorded by the learned Judge cannot be said to be unsupported by evidence or liable to interference in the course of a second appeal. The learned Judge recorded a specific finding to the effect that the evidence led by the plaintiff-respondent had completely failed to prove that the portion of house No. 193 in the occupation of the defendant appellant belonged to Rahim Baksh the predecessor of the plaintiff. I see no good reason to interfere with this finding in the course of a second appeal."
5. Later on Sri Abdul Alim filed a suit No. 773 of 1970 in the Court of Munsif West, Allahabad against Smt. Karimunnisa her sons and daughters.
Contention of the plaintiff Abdul Alim (Respondent of this appeal) was that Smt. Azimunnisa wife of Seikh Mahngoo was owner of disputed house, who transferred the house in suit by registered sale deed dated 29.7.1946 in favour of Jamaluddin. After death of Jamaluddin the property. In suit had devolved upon Smt. Ahmadunntsa, her sons and daughters.
Smt. Ahmadunnisa transferred the southern portion of the disputed house to the plaintiff Abdul Alim by sale deed dated 20.10.1957.
It has been alleged that Smt. Ahmadunnisa on the request of late Rahim Bux, who was brother of her husband allowed Rahim Bux to occupy the southern side of the upper portion of the house consisting of two rooms and roofs to use as licensee. After the death of Rahim Bux. his wife, sons and daughters are in occupation of the said portion as licensee. The plaintiff revoked the license and requested the defendant to vacate the southern side of upper portion of the disputed house and sent a registered notice, but the defendant gave evasive reply.
The said suit was dismissed by Sri A. B. Srivastava, the then IVth Additional Temporary Civil Judge, Allahabad on 11.9.1973.
Against the said judgment and decree Civil Appeal No. 505 of 1973 was filed and same was decided by Sri Kishen Lal. the then VIIth Additional District Judge, Allahabad on 7.8.1976, by which he partly allowed the appeal and decreed the plaintiffs suit for ejectment of the defendant from the house in dispute.
Aggrieved by the said judgment present appeal has been filed.
6. Heard Sri M. A. Qadeer, learned counsel for the appellants and Sri J. P. Yadav, learned counsel for respondent at length and have perused the record.
7. The judgment in the second appeal has been assailed on the ground that the decision in suit No. 239 of 1954 should not operate as res judicata as it only related with respect to the ground floor of the house and not in respect of upper portion of the house, which is already in occupation of the appellants and there was no suit against the predecessor-in-interest of the respondent in respect of upper portion of the house. Plea taken by the appellant is that property involved in suit No. 239 of 1954 was only with respect to the ground floor and it was regarding tenancy and it was not regarding title with respect to the upper portion of the disputed house and that there was no adjudication of the title and court below has erred in holding that the decision operated as res judicata against the appellants.
8. Now the question for determination in this appeal is whether decision in suit No. 239 of 1954 operated as res judicata or not?
9. From the perusal of the plaint of Suit No. 239 of 1954 it is clear that Smt. Karimunnisa came with the allegation that she along with others (her sons and daughters) are owner of the half portion of the southern side of house No. 193. It was further alleged that Saliman Bibi was owner of the southern half portion of the house in dispute No. 193, which was sold by her through registered sale deed on 19.9.1946 in favour of Rahim Bux husband of Smt. Karimunnisa.
After the death of Rahim Bux, Smt, Karimunnisa. her sons and daughters became owner of the house in dispute as heirs.
The Suit No. 239 of 1954 was decreed by Sri K. K. Birla, the then IInd Addl. Munsif, Allahabad, on 13.9.1956. Appeal against that decision was decided by Shri Mohd. Tufail Ahmad, the then J.S.C.C. Allahabad by his order dated 29.8.1959, by which he set aside the judgment of learned Munsif and dismissed the suit.
Smt. Karimunnisa against the said judgment filed Second Appeal No. 4331 of 1959, which was decided by Hon'ble B. D. Gupta, J. by his judgment dated 5.7.1966 in which it was held that plaintiff has failed to prove that the upper portion of the house No. 193, which is in occupation of the plaintiff-appellant belonged to Rahim Bux, predecessor of the plaintiff, hence he dismissed the appeal.
10. In view of the fact that as the prayer for eviction of the defendant with respect to the southern side of upper portion of the house in Suit No. 239 of 1954 has been rejected and against that decision, second appeal filed by the present appellant was dismissed and no appeal was filed in the Hon'ble Supreme Court hence the judgment given by Hon'ble B. D. Gupta, J. in the second appeal has become final.
11. In such circumstances, it is clear that regarding southern side of the upper portion of the house No. 193, the Judgment operated as res judicata.
12. There is no Justification for interference in second appeal.
As such second appeal is liable to be dismissed.
Second appeal is dismissed with costs.