Wanchoo, C. J - (1.) THIS is an appeal by Rasool Bhai and five others, members of the working committee of Madarsa Mahammadia Chhoti Sadri, against the judgment and decree of the Civil Judge, Nimbahera.
(2.) THE appellants were plaintiffs before the Civil Judge. THEir case was that they entered into an agreement for sale of a Haveli and a Bara on the 17th March, 1948, for Rs. 24,500/- with Jainarain and others. THE sale deed relating to the Haveli and Bara was registered on the 6th April, 1949. THE Haveli was mortgaged from before with possession to the mortgagee, but the plaintiffs got possession of the Bara immediately after the sale-deed of 6th April, 1949. THEir case further was that they were dispossessed from the Bara by defendants respondents on the 13th April, 1949. THEreafter, the plaintiffs filed the present suit on the 3rd of August, 1949, for recovery of possession of the Bara from the defendants. It may be added that they had also filed a suit for redemption of the mortgage of the Haveli on the same date. The suit was resisted by the defendants. Their case was that the property had been sold to them on the 20th March, 1948, and a sale-deed executed by Jainarain and others. It was not registered in spite of the defendants reminding Jainarain and others to do so. But the defendants had taken possession of the Bara on the 20th March, 1948, immediately after the execution of the sale-deed. Thereafter, on the 12th April, 1949, the defendants filed a suit for specific performance of the contract of sale. The two suits were pending in the court of the Civil Judge at the same time, but no attempt was made by any party to consolidate them. Seven issues were framed in the present suit on the 3rd of August, 1951. Two of these issues related to the stay of the suit under sec. 10 and to the array of parties, and were as follows - (1) Should the stay of the suit continue till the decision of suit No. 306 of St. 2007? (2) Are the vendors of the plaintiffs necessary parties to the suit? We find from the order-sheet that these two issues were to be heard as preliminary issues. Then on the 1st of September, 1951, arguments were heard on the question of res judicata, though no issue to that effect was ever framed. Eventually, on the 24th September, 1951, the suit was dismissed on the ground that it was barred by res judicata. We have gone through the judgment of the learned Civil Judge, and must say that it is a very confused and unsatisfactory judgment. As pointed out by learned counsel for the appellants, even the judgment and plaint of the suit on the basis of which the learned Civil Judge has held that the suit is barred by res judicata is not to be found on the record Learned counsel for the respondents applied to us sometime back that as the plaint and judgment were not on the record, we should send for their copies from some other record. He has today filed copies of the judgment and plaint, and we find that the judgment, on which be now relies, is in suit No 306 of 1951. This judgment was delivered on the 30th July, 1951, and we do not understand how the learned Judge framed issues as to stay of suit on the 3rd August, 1951, when suit No. 306 of St. 2007 had already been decide. However, we have heard learned counsel for the parties as if we were hearing the matter as the original court for the judgment of the Civil Judge is of no help to us. It has been urged by the plaintiffs appellants that no Question of res judicata arises in this case, even assuming for the sake of arguments that the judgments in suit No. 306 of Svt. 2007, dated 30th July, 1951, is an effective judgment Their contention is that the transfer in favour of the plaintiffs took place on the 6th of April, 1949, while suit No. 306 of Svt. 2007 was filed on the 12th April, 1949. Therefore, the defendants of that suit, who were the plaintiffs vendors, could not be said to represent the plaintiffs who were no parties to that suit; nor can it be said, in view of the fact that the sale deed in favour of the plaintiffs was earlier than the date on which suit No. 306 of Svt. 2007 was filed, that the plaintiffs were claiming in the present suit under the defendants of suit No. 306. We are of opinion that learned counsel for the plaintiffs is right in his submissions. The law on the point is well settled, and may be summarised in these words - "a person is said to claim under another when he derives his title through the other by assignment or otherwise. But his title must have arisen subsequently to the commencement of the first suit. " We may cite a number of cases in support of his principle. In Govindan Asari vs. Nagayan Chettiar (1) the following observations appear at page 239 - "it is unquestionable, as a general proposition, that where a person possesses an interest, acquired before the suit in an estate, which interest is not represented by any of the parties to the suit, the decision will not be res judicata against him. Thus a vendee from a party prior to suit will not be bound. " In Bhagwan Singh vs. Mt. Ishar Kuar (2), it was held that resjudicata not only affects the parties but their privies, that is. persons claiming under them. But in order that a decision in a suit may operate as res judicata in a subsequent suit, it is necessary to show that the person against whom resjudicata is being urged got his title subsequently to the commencement of the first suit. In Mt. Katori vs. Om Prakash 3), it was held that any decision obtained against a mortgagor after the execution of a mortgage deed cannot operate as res judicata against the mortgagee. The law, if we may say so with respect, was brought out very lucidly in Sailendra Nath Bhattacharjee vs. Bijan Lal Chakra-varty (4 ). It was pointed out there that a judgment inter parties could bind only those who were parties or privies to it. One person could become a privy to another in one of two ways (i) by succeeding to the position of that other as regards the subject-matter, or (ii) by holding in subordination to that other. To make a man prive to an action he must have acquired an interest in the subject-matter of the action by inheritance, succession or purchase from a party subsequent to the action, or he must hold the property subor-dinately. Nobody could represent an interest which he had already parted with, and consequently a transferee prior to the institution of the suit could not be privy to or bound by a judgment obtained against a transferer. It was, however, added that the position might be different in the case of a subordinate holder, e. g. when a sub-lessee holds under a lessee. In Kasa Krishno Ghorpade vs. Vina-yak Gangodhar (5), it was held that - "in order that a purchaser may be bound by a previous decision between his vendor and a third person the purchase must have taken place subsequently to the commencement of the suit. A purchaser is not bound by a decree passed in a suit against his vendor commenced after the date of his vendor commenced after the date of his purchase". In Beli Ram & Brothers vs. Choudri Mohammad Afzal (6), their Lordships of the Privy Council, while dealing with resjudicata in similar circumstances, observed as follows at page 171 - "but the answer to this contention is that the alienations under which appellants 2 and 3 claim were made before the date of the former suit. Those appellants therefore do not claim under a party to the former suit who represented their interests in that suit, but under a person who subsequently become a party, and who at the time of the suit did not represent their interests. Their Lordships think that appellants 2 and 3 in any case are not affected by the plea of res judicata. "
(3.) THESE authorities clearly establish that a vendee cannot be bound by the decision obtained in a previous suit against the vendor even though it may relate to the some property if the previous suit commenced after the sale in favour of the vendee. The principle is that the vendor having parted with his property before the suit commenced could not represent the vendee in that suit. This principle, in our opinion applies with full force to the facts of the present case. Jainarain and others executed a sale deed in favour of the plaintiffs appellants on the 6th April, 1949. Suit No. 306 of St. 2007, the judgment of which is being claimed to be res judicata, was brought on the 1 2th April, 1949. To that suit the present plaintiffs were not parties, but only their vendors were parties. The vendors having already parted with their interest to the plaintiffs could not represent the plaintiffs; nor can it be said that the plaintiffs in the present suit are claiming under the defendants of that suit in these circumstances. The judgment therefore in suit No. 306 of St. 2007 cannot be res judicata in this case. The argument of learned counsel for the respondents in this connection was this. He says that a sale deed was written out in favour of the present defendants on the 20ih March, 1948. This sale deed was the subject of suit No. 306 of St. 2007, and, according to him a decree has been passed in the present defendants' favour to the effect that the property was sold to them on the 20th March, 1948. So it is contended that the present defendants hold a sale-deed dated 20th March, 1948, and their sale-deed being earlier prevails against the sale-deed in favour of the present plaintiffs. We do not think it necessary to express any opinion on this line of reasoning; but it is quite clear that this is a line of reasoning on which the present defendants may be able to defend their position, if it commends itself to the trial court when the case is tried out on the merits. But on this line of reasoning we fail to see how a question of res judicata arises at all. Learned counsel for the respondents also relied on sec. 53a of the Transfer of Property Act. Here again the defendants may be able to convince the trial court that they are protected by sec. 53a of the transfer of property Act. That is a matter on which we need not express any opinion at present. But that again does not raise a question of res judicata and cannot help in coming to the conclusion that the judgment in suit No. 306 of St. 2007 is res judicata between the parties. The question of res judicata must be decided against the defendants on the sole ground which we have already set out above. We, therefore, allow the appeal, set aside the judgment and decree of the court below and send the case back to the Civil Judge, Nimbahera, for trial on the merits on the remaining issues. The appellants will get their costs of this Court from the respondents. Costs of the trial court will abide the final result. . ;