R.S. Pathak, J. - (1.) A number of agricultural plots were held by two brothers, Chhotu and Godhu. On April 7, 1942, Raghubir Singh, the fourth Respondent, was taken in adoption by Godhu and a deed of adoption was executed. Subsequently, it seems that an agreement took place between Chhotu and Godhu pursuant to which a registered deed dated July 24, 1942 was executed purporting to cancel the deed of adoption. Thereafter, two suits were filed by Raghubir Singh before the learned Additional Munsif, Ghaziabad, one in respect of the agricultural plots and the other in respect of a house, for a declaration that as the adopted son of Godhu he was entitled to a half share in the property. The trial court dismissed both the suits. Raghubir Singh appealed against the decrees in the two suits. During the pendency of the appeals, proceedings were commenced under the U.P. Consolidation of Holdings Act and as a result the proceeding in the appeal respecting the agricultural plots was stayed. The appeal relating to the house was heard by the learned Civil Judge and he allowed the claim of Raghubir Singh in respect of a half shar in it on the finding that Raghubir Singh was the adopted son of Godhu. A second appeal by Chhotu before this Court was dismissed summarily.
(2.) IN proceedings Under Section 9 of the U.P. Consolidation of Holdings Act Raghubir Singh filed an objection asserting that as the adopted son of Godhu he was entitled to be entered as a co -tenure -holder in respect of the agricultural plots along with Chhotu. The objection was contested by the Petitioners, who claimed that they were the sole tenure -holders of the land by virtue of a transfer from Chhotu who, they contended, was the sole Bhumidhar of the land. The Consolidation Officer upheld the objection of Raghubir Singh. An appeal by the Petitioners was allowed by the Settlement Officer (Consolidation) and he dismissed the objection filed by Raghubir Singh. In second appeal, the Deputy Director of Consolidation by his order dated February 17, 1962 set aside the order of the Settlement Officer (Consolidation) and restored that of the Consolidation Officer. He held that the issue whether Raghubir Singh was the adopted son of Godhu had been decided in his favour by the civil court and was binding upon the Petitioners as transferees from Chhotu and therefore the Consolidation Officer was right in allowing the objection entered by Raghubir Singh. The Petitioners applied in revision and the Joint Director of Consolidation by his order dated September 18, 1962 dismissed the revision application. The Petitioners pray for certiorari against the orders of the Deputy Director of Consolidation and the Joint Director of Consolidation. It is not disputed between the parties that Raghubir Singh, in the two suits filed by him, impleaded Chhotu only as Defendant and the Petitioners were not parties to the suits. It is also not disputed that the transfer by Chhotu in favour of the Petitioners preceded in point of time the institution of the two suits by Raghubir Singh. The point for consideration is whether the finding by the learned Civil Judge, in the suit relating to the house property, that Raghubir Singh was the adopted son of Codhu, operates as res judicata and bars the trial of that issue in the consolidation proceedings. The Petitioners contend that as they were not parties to the suit and as the transfer in their favour by Chhotu took place before the suit was instituted, a finding on that issue against Chhotu was not binding upon them. It is urged that Chhotu having parted with his interest in the land could not represent that interest in the suit filed subsequently and accordingly any finding in the suit could not affect the Petitioners as the owners of that interest. Now it is clear from what the Privy Council said in Beli Ram and Brothers and Ors. v. Chaudhri Mohammad Afzal and Ors. : AIR 1948 P.C. 168 that where an alienation had been made before the institution of a suit, to which the alienor was a party, any finding in that suit against the alienor cannot bind the alienee who has not been impleaded as a party to the suit. The alienee, it was pointed out, did not claim under a party to the former suit who could be said to have represented his interest in that suit but under a person who subsequently became a party and at the time of the suit did not represent the alienee's interest. Reference may also be made to a decision of this Court in Mt. Katori v. Om Prakash : AIR 1935 All. 351 :, (1934) 4 AWR 760 where Niamatullah, J. held that a decision obtained against a mortgagor after the execution of a mortgage deed could not operate as res judicata against the mortgagee if the mortgagee was not a party to the suit and the mortgagee cannot be considered to be litigating under the same title as the mortgagor did in the earlier suit. These decisions support the contention of the Petitioners.
(3.) BUT it is urged on behalf of the Respondents that the decisions are founded upon the express terms of Section 11 of the Code of Civil Procedure and that upon the general principles involved in the doctrine of res judicata the finding that Raghubir Singh is the adopted son of Godhu would bar a fresh decision of that issue in the consolidation proceeding. In the first place, there is nothing in the judgment in Mt. Katori's case (supra) to suggest that the decision rested upon the specific provisions of Section 11 of the Code and not upon general principles. Moreover, it seems to me to be fundamentally essential when applying the genera] principles of the doctrine of res judicata that the decision in the former proceeding should have been between the same parties as in the subsequent proceeding or in any event between parties under one of whom a party in the subsequent proceeding derives his title. When that requirement was included in the statutory provisions of Section 11, no more has been required than what the general principles necessarily envisage.;