Judgement

Appeal (No.8 of 1948) from a judgment and decree of the High Court (March 27, 1942) which had affirmed a judgment and decree of the Subordinate Judge, Jalpaiguri (September 12, 1938).

The suit out of which this appeal arose, filed on September 9, 1936, was one for the partition of family property in which the plaintiffs claimed a share, alleging that the first plaintiff, Khatamannessa, was the second wife of one Safiquddin, deceased, and that the other plaintiffs were their legitimate children. Of a number of defendants, the first defendant, Tanjina Khatun, was admittedly one of the wives of Safiquddin, and their two children were also defendants. It was denied in separate written statements filed by the present appellants (who were defendants Nos. 9 and 15 in the suit) that Khatamannessa was the lawful wife of Safiquddin, and they pleaded that that question was res judicata by reason of the decision in an earlier suit, No.1 of 1922.

The facts regarding the question of res judicata in suit No. 1 of 1922 were that the suit was brought by his landlord against Safiquddin during his lifetime to recover arrears of rent in regard to certain properties. After his death substitution of defendants was made, and the present plaintiffs, among a large number of other persons, were added as party defendants On August 21, 1924. Tanjina and her children, who had been substituted as party defendants, filed a joint written statement in which they alleged that they were the only heirs of Safiquddin. They alleged that the present first plaintiff was not the wife of Safiquddin and with her children had been unjustly joined as defendants. One of the issues in that suit was "4. Is the suit bad for mis-joinder of parties. On August 23, 1924, the trial judge delivered judgment in which he stated that only Tanjina and her children contested the suit, the "other defendants not appearing in spite of service of summons upon them." He stated "Both" the parties agree that defendants Nos. 20 (una) to 20 (chha) [the present plaintiffs] are not Safiquddins heirs. According " to them defendant No. 20 (una) was not Safiquddins married "wife but a concubine, and defendants Nos. 20 (cha) and " 20 (chha) are her sons,. They are thus not Safiquddins "legal heirs. The suit must be dismissed as against them." He decreed the suit against the other defendants.

In the present suit the Subordinate Judge held, inter alia, that suit No. 1 of 1922 did not in law operate as res judicata, on the ground that it was not necessary in that suit to determine the conflict of interest between the present first plaintiff and first defendant in order to grant a decree to the landlord plaintiff in that suit.

On appeal, Syed Nasim Ali J., delivering the judgment of the court (Syed Nasim Ali and Radhabinod Pal JJ.) held on the question of res judicata that where a plaint in a prior suit did not raise any conflict between co-defendants, and a defendant did not appear, but a co-defendant appeared and claimed an interest conflicting with that of the absentee defendant, the decision could not operate as res judicata unless the absentee defendant got notice of the conflict. In such circumstances, it was held, the matter could not be said to have been heard and finally decided so as to bind the parties. The judge said that from the evidence on the record it appeared that the present first plaintiff had been designedly kept from the knowledge of the conflict.

In the result both the Subordinate Judge and the High Court held that on the evidence the first plaintiff had proved that she was the legitimate wife of Safiquddin and that the other plaintiffs were their legitimate children, and they allowed the claim for partition.

The main question in this appeal was whether the plaintiffs were debarred from alleging that they were the lawful heirs of Safiquddin by reason of the decision on that point in suit No. 1 of 1922.

1949. Oct. 25, 26. Rewcastle K. C. and Bagram for the appellants.

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