Dave, J. - (1.) THIS is second appeal by the plaintiff against the judgment and decree of the learned District Judge, Merta, dated the 13th August, 1954, reversing the decree of the learned Munsiff Merta dated 29. 2. 52 and dismissing his suit.
(2.) THE fact giving rise to this appeal are that one Amrit Raj, who has appeared as the plaintiff's witness (P. W. 3) in the present case, had obtained a decree against one Hazari. In execution of the said decree, a house (Nohra) belonging to the judgment debtor was attached by the executing court. THE present plaintiff Mangaram filed an objection petition against the said attachment on the ground that the house, which was attached, was already mortgaged by Hazari (judgment debtor) with one Harlal and that Harlal in his turn had transferred his mortgagee rights to the plaintiff. This objection petition was dismissed by the executing court. THEreafter, the plaintiff brought a regular suit according to the provisions of O. 21, R. 63 C. P. C. against Amritraj for a declaration that the house was not liable to attachment and sale. Amritraj's plea in that case was that the alleged mortgage by Hazari in favour of Harlal and the assignment of the mortgage rights by Harlal in favour of the plaintiff Mangaram were sham and collusive and these documents were executed only to defeat the rights of Hazari's creditors for realising their debts. This argument found favour with the trial court and the plaintiff's suit was dismissed. That case went in second appeal before the High Court of the former State of Jodhpur. It was held by the High Court as well that the mortgage deed executed by Hazari in favour of Harlal and Harlal's assignment of his mortgagee rights in Mangaram's favour were both sham and collusive. It seems that Mangaram had not impleaded Harlal as a defendant in the above case. Having lost the said case, Mangaram filed the present suit against Harlal for realising Rs. 195/- which were said to have been given to Harlal in consideration of the latter's assignment of his mortgagee's right in the plaintiff's favour. He also claimed from him Rs. 250/- for the expenses incurred by him in his objection petition and suit referred above. Defendant Harlal contested the suit and pleaded that the assignment made by him in the plaintiff's favour was really sham and collusive, that this matter was already decided by the High court of the former State of Jodhpur and that the plaintiff had no right to get from him Rs. 195/- which he had never given to him. According to his vision, the plaintiff knew that the mortgage deed executed by Hazari in defendant's favour was collusive, but still he thought that he would be able to save the property from Hazari's creditors and so he got the assignment made in his favour by giving Rs. 21/- to him. THE trial court framed the following 3 issues; - (1) Whether plaintiff did not pay Rs. 195/- for the assignment of mortgage? (2) (a) whether plaintiff spent Rs. 250/- in Ujardari and civil suit? (b) If so, is he entitled to claim amount from the defendant? (3) Relief. After recording evidence of the parties, the Munsiff came to the conclusion that the defendant had failed to discharge the burden placed upon him and to prove that he had received only Rs. 21/- and not the entire amount of Rs. 195/ -. He further found that the plaintiff had been able to prove that he had incurred an expenditure of Rs. 205/-in the previous litigation and so he passed a decree for Rs. 400/- against the defendant on 29-2 52. Aggrieved by this decision, the defendant went in appeal which was allowed by the learned District Judge. He set aside the trial court's decree and dismissed the suit. Hence, this second appeal by the plaintiff. Learned counsel for the appellant has urged that the first appellate court has produced a confused and erroneous judgment and so it must beset aside. It is pointed out that the learned District Judge has also arrived at the conclusion that Rs. 195/-were given by the plaintiff to Harlal and still he has held that the transaction between the plaintiff and Hazari was sham and collusive. It has been argued that the first appellate court was influenced by the judgment of the High Court of the former State of Jodhpur, but that judgment could not have the effect of res judicata, because Harlal was not a party to that suit. Learned counsel for the respondent has urged in reply that even though Harlal was not a party to the previous suit for a declaration, the High Court of the former State of Jodhpur had definitely held that not only the alleged mortgage by Hazari in favour of Harlal was sham and collusive, but the assignment of the mortgagee rights by Harlal in Mangaram's favour was alio sham and collusive, that when this decision was given against the plaintiff even in Harlal's absence, the plaintiff was not on a better footing while bringing the present suit against Harlal and that he was estopped from raising a plea which was heard and decided by the highest court of the then State of Jodhpur. It is next urged that both the courts below had committed an error in thinking that the burden of proving the lack of consideration was on the defendant. It is contended by learned counsel that when the High Court in the previous suit had held that the assignment of the mortgagee rights was sham and collusive, a heavy burden lay on the plaintiff to prove that he had paid Rs. 195/- to Harlal and that he was not a party to any fraud and collusion. It has been further argued that the courts below have not examined the evidence thoroughly, that the evidence produced by the plaintiff himself has been misread and if the two courts below had scrutinized the evidence of the plaintiff and his witnesses, they would have come to the conclusion that the payment of Rs. 195/- was not proved. They committed a mistake in looking at the defendant's evidence only and in failing to scrutinize the plaintiffs evidence on this point. I have given due considerations to these arguments and it is clear that two points which emerge for determination of this Court are : - (1) whether the plaintiff was estopped from bringing the present suit on account of the decision of the High Court of the former State of Jodhpur dated 25. 7. 47 against him? and (2) whether the plaintiff has been able to prove that he had paid Rs. 195/- to Harlal and the assignment of the mortgagee rights in his favour was not collusive or fraudulent. To begin with the first point, learned counsel for the respondent has urged that when the plaintiff had failed in his previous suit even without joining issue with the present defendant he should not be permitted to agitate the matter over again simply because the defendant was not a party to the previous suit. In support of his contention learned counsel has referred to Sayam Ramamoorthi Dhora vs. The Secretary of Stale for India in Council (1 ). In that case the plaintiffs had filed a suit for a declaration that the defendant, i. e. , the Secretary of State for India in Council was not entitled to levy any assessment on certain lands which they claimed as part of their Agraharam. The defendant contested that the lands in question did not belong to the plaintiffs, that other persons in a previous suit had prayed for a declaration that the lands belonged to them and that they had obtained a decree which was affirmed even on appeal and second appeal. This argument found favour with the learned Judges. They relied upon a passage appearing in Bigelow on Estoppel. It was further observed that "the question does not depend upon the application of the doctrine of res judicata between the parties as expounded in sec. 13 of the Civil Procedure Code. This section does not cover all cases of estoppel by judgment We must hold that the plaintiffs cannot be permitted to prove that they are owners of the land in question". It may be pointed out that the view expressed in the above case has been overruled by a Full Bench of the same High Court in Secretary of State vs. Syed Ahmad Badsha Sahib Bahadur (2 ). In that case also the plaintiff had first brought a suit against two other persons for a declaration that he was entitled to Asari Sheriff and to recover from the Government the emoluments of the officer and it was held in that suit that the plaintiff did not prove title to the office and so the suit was dismissed. Thereafter, he brought another suit against the Government to recover a sum of money alleged to be due to him as the person entitled to the Asari Sheriff and performed the services connected therewith. The Government was paying the sum to the successful party in the previous litigation. It was held that the judgment in the previous suit was not a bar to the second suit. It would be proper to reproduce here the observation of Kumaraswami Sastri J. which deals with the matter exhaustively: - "the question is how far and under what circumstances can a judgment in personam be given the force of a judgment in rem or be pleaded as a bar under sec. 11, Civil Procedure Code in cases where it is pleaded as a defence to an action, by third parties who do not claim under or were not represented by the parties to the original action. So far as the statute law in this country is concerned, the case is governed by sec. i 1 of the Civil Procedure Code which deals with res judicata, Secs. 40 to 44 of the Evidence Act which deal with the relevancy of judgments of competent Courts and sec. 43 of the Specific Relief Act which deals with declaratory decrees. Under sec. 11 of the Civil Procedure Code one of the Conditions precedent to its application is that the former suit should be between the same parties or between parties under whom they or any of them claim and the section is a bar to the trial of a suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in the previous suit. The section codifies the law in British India as regards the plea of res judicata and, though the principle has been applied to proceedings other than suits (e. g. execution proceedings), the essentials required by the section as to identity of the questions involved and parties has not been lost sight of. Sec. 43 of the Specific Relief Act enacts that a declaratory decree passed under the Act is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees. Secs. 40 to 44 of the Evidence Act deal with the relevancy of judgments of Courts of Justice. Sec. 40 enacts that the existence of any judgment order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial Sec. 4i deals with final judgments, orders of decrees of competent Courts in the exercise of Probate, Matrimonial, Admiralty or Insolvency jurisdiction, or what is known as judgments in rem, and it states that such judgments, orders, or decrees are conclusive proof of that matters specified in the section; and, by virtue of sec. 4 of the Evidence Act, evidence cannot be allowed to disprove the facts established by such judgments, sec. 42 refers to judgments relating to matters of a public nature relevant to the enquiry and the section states that such judgments, though evidence, are not conclusive proof of that which they state, thus allowing evidence to be given to disprove the facts found in the judgments Sec. 43 says that judgments, orders or decrees, other than those mentioned in secs. 40,41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act (e. g. , sec. 13 ). Sec. 44 enables a party to show that any judgment, order of decree which is relevant under sec. 40, 41 or 42, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion". It was further observed by the learned Judge that "estoppel must be mutual and it is difficult to see how a party not bound by a judgment can set it up in bar against a party to it. " Then turning to the question as to whether a judgment in personam can acquire the force of judgment in rem under any given set of facts and after referring to the passage from Bigelow's Evidence which was referred to in Sayam Ramamoorthi Dhora's case (1), it was observed that "we cannot travel outside the provision of sec. 11 of the Code of Civil Procedure and apply the rule of res judicata to cases falling outside the limitation imposed by the section". The learned Judge also referred to the following observation of their Lordship of the Privy Council in Gokul Mandar vs. Pudmanund Singh (3) : - "they will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. " The learned Judge also referred to the observation made in Peart Mohan Shaha vs. Durlavi Dassya (4) which did not follow the view expressed in Sayam Ramamoorthi Dhora's case (1 ). Again turning to the Evidence Act it was pointed out by the learned Judge that "secs. 41 and 42 draw a distinction between Judgments in rem and Judgments in personam and it seems to me to be clear from the sections that a Judgment which does not fall within sec. 41 can only be evidence but cannot be used for the purpose of preventing the other side from proving facts which he sets up". It was further observed that "it is not open to us to import considerations as to convenience in dealing with matters which have been codified and dealt with by Evidence Act, however attractive the theory may be and however much one would like to have the principle embodied by the legislature in the codes". I entirely agree with the view expressed above. It is clear from what has been discussed above that sec. 11 C. P. C. would not apply in terms to the present case as Harlal was not a party to the previous suit for declaration. The judgment in the previous suit being a judgment in personam,it is not conclusive under sec. 41 of the Evidence Act and it can only be evidence under sec. 42 of the Evidence Act. The plaintiff was, therefore, not estopped from establishing in the present suit against Harlal that he had in fact given Rs. 195/- to him in consideration of the assignment of the mortgagee rights by Harlal in his favour and that he was not a party to any fraud or collusion between him and Harlal or Harlal & Hazari. At the same time it is clear that previous judgment of the High Court of the former State of Jodhpur dated 25th July, 1947 was a strong piece of evidence against him. He had filed the present suit in the face of the above evidence and therefore a heavy burden lay upon him to show that the finding given in the previous suit against him was erroneous. This brings us to the second point whether the plaintiff had been able to discharge the onus referred above. It appears from the judgment of the trial court that it did not scrutinize the evidence of the plaintiff and it decided the case against the defendant on the ground that he was unable to prove the want of consideration and that his statement in the present case was contrary to the previous statement made by him. It may be observed that if the plaintiff had not filed an objection petition or the declaratory suit and if this were the only case filed in the court, then there could be justification for the view taken by the trial court. Ordinarily, it is true that if the execution of a! certain document is admitted or proved to have been made by the party by whom it purports to have been executed, then the burden of proving the lack of consideration would be on that party. But this was a case in which the highest court of the then State of Jodhpur had once held that the plaintiff had not been able to prove if he had paid Rs. 195/- to Harlal and that the assignment in his favour was sham and collusive. In these altered circumstances a duty lay heavily upon the plaintiff to prove in the present case that Rs. 195/- were really advanced by him, Learned counsel for the appellant has urged that both the courts below have arrived at a concurrent conclusion in this respect and therefore this Court cannot interfere with that finding in second appeal. It is true that this Court has no jurisdiction to disturb the finding of fact in second appeal, but if that finding is vitiated on account of the wrong appreciation of the position of law or misreading of evidence or ignoring a material piece of evidence, then it becomes a question of law and it would end in serious injustice if this Court refuses to probe into the matter inspite of glaring mistake of the above kind being pointed out to it. It may be pointed out that the High Court of the former State of Jodhpur had mentioned in its judgment that the alleged mortgage deed by Hazari in favour of Harlal was an unregistered document. The plaintiff has led no evidence to show if Hazari had executed a valid mortgage deed in favour of Harlal and if Harlal really possessed any mortgagee rights which he could assign in his favour. He has even failed to place on record the deed of assignment which Harlal is said to have executed in his favour. He tried to prove this transaction only by secondary evidence and the courts below did not even apply their mind to the fact if it was admissible without, proving the circumstances referred in sec. 65 of the Indian Evidence Act Further, ii appears from the statement of Harlal himself that when he was cross-examined as to who had scribed the deed relied upon by him, he stated that he did not know his name. He also stated that the money was given by him to Hazari a day earlier and the document in his favour was executed on the next day. He mentioned four witnesses, namely, Laxmi Narain Bhootra, Pusaram, Ram Narain and Manaklal, in whose presence the money is said to have been given; of them Laxmi Narain was said to be dead and could not be examined, Pusaram was alive and still he was not examined. It is said that he was informed and could not come to the court but even if this was true, he could be examined on commission It is clear that the plaintiff has thus knowingly left out an important witness. He examined only Ram Narain and Manaklal. Ram Narain tried to support him vaguely by saying that the money was given in his presence, but at the same time he stated that he could not say how much amount was given. If the defendant was given only Rs. 20/- as stated by him. Ram Narain would be of no help to the plaintiff. It may be pointed out here that the plaintiff had also examined Amrit Raj as his witness. He stated that there was a talk in his presence between Hazari, Harlal and the plaintiff. Harlal had told the plaintiff in his presence that he had given him Rs. 21/-and he could take it back if he so liked. Thereupon, the plaintiff told him in the presence of this witness that he would get the full money according to the document, even though he had given only Rs. 21/ -. This means that according to the witness Amrit Raj the plaintiff had himself admitted in his presence that he had given only Rs. 21/- to Harlal. This is clearly a damning piece of evidence against the plaintiff and it is strange that both the courts below have ignored it The only piece of evidence which supports the plaintiff is that of Manaklal who. says that Rs. 195/- were given by the plaintiff in his presence to Harlal, but it seems that the courts below did not scrutinize even this solitary statement closely. According to this witness, Manga Ram had in his possession the document, while Manga Ram has himself admitted in his statement as pointed out above that the deed of assignment was written on the next day while the money was given on the earlier day and so the deed of assignment could not possibly be in plaintiff's possession when the money is said to have been given. It is clear that he is not a witness of truth. It was absolutely wrong on the part of the trial court to rely on this solitary witness and give a finding in the plaintiff's favour in the face of a contrary decision against him by the High Court of the former Jodhpur State. It is not easily understandable why the plaintiff should have given the money earlier to Harlal without getting the deed of assignment executed by him in his favour. As pointed out above, he has failed to produce the original document and further failed to examine its scribe and attesting witnesses. Under these circumstances, this Court cannot adopt the finding of the courts below and pass a decree on its basis in the plaintiff's favour. The first appellate court has no doubt produced a confused judgement because it did not probe into the evidence and readily accepted the finding of the trial court about the payment of Rs. 195-by the plaintiff to Harlal and then it had some doubt about its correctness and therefore it tried to get over it by a wrong approach. Thus the decision by the first appellate court is correct and it has rightly dismissed the plaintiff's suit though the grounds given by it are not quite correct. It has already been discussed above that the plaintiff has miserably failed to prove that the transaction on which he relies was a genuine one. There is, therefore, no force in this appeal and it is hereby dismissed with costs. . ;