- (1.) THE suit giving rise to the appeal and the cross objection in this case was for cancellation of a sale-deed, dated 27th November, 1958, that was executed by Habib Khan, son of Saeed Khan by his second wife, Smt. Saeedam Bibi. THE plaintiff-appellants Haleem Khan, Shamashuddin Khan and Smt. Anawari Bibi respectively, of whom Haleem Khan has since died during the pendency of the appeal in this Court, are the sons and daughter of Munir Khan, another son of Saeed Khan, by his first wife Smt. Sharfun Bibi. It was claimed that the house was originally the Chhaoni, and thus part of the Zamindari property of Saeed Khan. He made a gift of his zamindari in the village Nagesar Nawaza Rai to Smt. Sharfin Bibi. THE gift included the house as it was his Chhaoni and appurtenant to the zamindari. THE gift was made by a registered instrument. Later on, Smt. Sharfun Bibi sold the zamindari to Bashir Ahmad in the year 1933, but she continued in possession of the houses and became their owner by adverse possession. THE site and the land appurtenant also came to, belong to her under S. 9 U. P. Zamindari Abolition and Land Reforms Act.
(2.) ACCORDING to the defence, the houses in suit were not the subject of gift made to Smt. Sharfun Bibi, and, whatever was gifted to her, was transferred to Bashir Ahmad in 1933. The houses remained the property of Saeed Ahmad Khan so lone as he lived, and after his death, Habib Khan succeeded to them as nearest heir, his sister having surrendered her rights in his favour. Certain other pleas were also raised, and as many as eight issues were raised at the trial. Issues 1, 2 and 8 raised the question of the plaintiff's title to the houses. The trial Court held that the plaintiffs are owners to the extent of 1/8 share in the property, and the sale-deed was invalid to the extent of the plaintiffs' 1/8 share, and decreed the suit accordingly. The three points raised before the lower appellate Court were those covered by the issues 1, 2 and 8. There was a cross-objection also before the lower appellate Court. The lower appellate Court confirmed the judgment and decree of the trial Court with the finding that the plaintiff-appellants and Habib Khan were co-owners of both the houses in suit and were in possession thereof as such prior to the execution of the sale-deed dated the 27th November, 1958 by Habib Khan, and that the share of Habib Khan in the house was 7/8, while that of the plaintiffs, it was only 1/8, and the sale deed was invalid to the extent of the plaintiff's 1/8 share. The principal contention raised by Mr. S. K. Verma, for the appellants in this appeal was that the finding of the two courts below that the houses in suit belonged to Saeed Khan was bad in law, inasmuch as, on an objection under Section 47 of C. P. C. (Misc. Case No. 30 of 1930) in Execution Case No. 9 of 1930 in the Court of the Subordinate Judge, Ghazipur, filed by Smt. Sharfun Bibi), it had been held that the houses in suit were not the property of Saeed Khan. A certified copy of the judgment, dated We 31st May, 1930 on that objection, is Ext. 2 on the record. Mr. Verma confended that the judgment operated as res judicata.
(3.) AN application was made in this Court in the year 1974 for admission of certified copy of the plaint of the suit giving rise to the execution case, in which that judgment was passed, in order to show that Habib Khan and his mother Saeedan Bibi were parties to that proceeding, and the two Courts below had wrongly observed that they were not parties thereto. Mr. Sankatha Rai, appearing for the defendant-respondents, met the contention of Mr. S. K. Verma by saying that the objection, though described as one under Section 47 C. P. C. , in the opening line of the judgment, dated 31st May, 1930, Ext. 2 was, in fact and in law, an objection under Order 21, R. 58, C. P. C. , that had been preferred by Smt. Sharfun Bibi against the attachment of the house property, which is now in suit in execution of the decree for costs that was passed against Saeed Khan in that case; and according to the law declared by the Supreme Court in Mangru v. Taraknathji (AIR 1967 SC 1390); a decision on an objection under Order 21, Rule 58, C. P. C. , does not operate as res judicata on a question about title to the property in a regular suit.;