RAGHUNATH TEWARI Vs. SITA RAM SINGH

JUDGEMENT

(1.) This is a second appeal from the judgment of the learned District Judge of Azamgarh, upholding the decision of the first Court by which the plaintiffs- appellants suit for possession of certain zemindari property in Azamgarh District and of two mango trees in Fyzabad District was dismissed. Some difficulty has arisen in this Court owing to the lower appellate Court having imported into the proceedings certain findings which are not based on the pleadings of either party. The plaintiffs-appellants based their suit on a sale-deed by which Jaikaran Singh, one of the defendants, purported to transfer the property described above to Sarju Tewari, son of Baijnath Tewari. This sale-deed was executed in 1915. In January 1917, the same defendant, Jaikaran Singh, gifted the same property to defendants 2 and 3, and gave them possession. Sarju, the nominal vendee under the sale- deed of 1915, sued the donor and the donee for possession in 1918. The suit, which ultimately went up in appeal to the High Court, was dismissed on the ground that the registration of the sale-deed was invalid. It may be explained here that the registration took place in Fyzabad District, and it was found in that litigation that there were no mango trees belonging to the vendor, as described in the sale-deed, and that no part of the property transferred was situated in the. District of Fyzabad.

(2.) In the present suit the first Court considered that the question of the validity of the registration was res judicata on the ground that the present plaintiffs- appellants actually fought out the previous suit in the name of Sarju Tewari; but in this the lower appellate Court has disagreed. The facts of the transaction are by no means free from doubt. The plaintiffs-appellants case was that the whole joint family intended to purchase the property, and it was actually purchased with joint family funds, but that Baijnath Tewari, father of Sarju Tewari, who was entrusted with the execution of the deed, dishonestly had it executed in the name of Sarju alone; and that the plaintiffs-appellants were entirely ignorant of the litigation in which Sarju attempts to obtain possession in 1918. The learned Judge has found that the sale was in reality not in favour of Sarju at all, or in favour of the joint family, or paid for from the joint family funds; but that it was a collusive transaction in favour of one Sadanand Shukul, maternal uncle of Sarju.

(3.) As I have said above, this is not the case of either party, nor is it supported by the evidence on the record. Before he wandered on to this side tract, the learned Judge was in a fair way to agree with the finding of the Court of first instance that the plaintiffs-appellants were cognizant of the proceedings in which Sarju sued to recover possession of the property. He remarks: The learned Subordinate Judge has not believed plaintiffs case that they had no knowledge of the former litigation, and I am:also not inclined to believe them. If they are really members of a joint family, as they allege and as has been found by the lower Court, plaintiffs must have known of Sarju's case fought up to the High Court in respect of the joint family property.