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2010 DIGILAW 1033 (JHR)

Md. Asgar Hussain v. Md. Safique Alam

2010-11-25

N.N.TIWARI

body2010
JUDGMENT Narendra Nath Tiwari, J. 1. This second appeal is against the judgment and decree passed by the 1st Additional District Judge. Godda dismissing the appeal filed under Section 97 of the Code of Civil Procedure. 2. The Appellants were not the parties to the suit. Their case was that a partition suit was instituted by one Mossomat Jumni, Mostt Bratan and Rafique Alam claiming partition of the suit property. The mother of the Appellants namely Bibi Zubeda and Abul Hussain, elder brother of the Appellants, were Defendants -- second party. They had also claimed their share. The parties had adduced their evidences and on appraisal of the evidences of the parties, partition suit was decreed in favour of the Plaintiffs holding that the Appellants' mother Bibi Jubeda and the Appellants' brother Abul Hussain have absolute no right, title and interest in the suit property and they were rank outsiders. 3. The Plaintiffs' mother had preferred appeal against the said judgment and decree of the trial court, which was dismissed. The second appeal filed against the said judgment being S.A. No. 420/1998 was also dismissed. Thereafter Special Leave to Appeal was filed before the Supreme Court being S.L.P. (Civil) No. 17036/2000. The same was also dismissed by Hon'ble Supreme Court. Final decree, thereafter, was prepared on the basis of the preliminary decree. 4. Against the said final decree the Appellants filed appeal in the Court of District Judge, Godda being Title Appeal No. 07 of 2006 in which the impugned judgment and decree has been passed. 5. The Appellants claimed that after the prelimhary decree and before the final decree proceeding, their mother Bibi Zubeda died. After death of their mother the Appellants were not substituted and not made party in the final decree proceeding. 6. The appeal, filed on behalf of the Appellants, was entertained by learned Lower Appellate Court and parties were heard. According to the Respondents, they are governed by Hanafi School of Mohammadan Law. Title Suit No. 24/1970 filed by them was decreed and the Defendants-Appellants were held cook and servant of Late Sk. Bhaglu. The Appellants' predecessors-in-interest were held to be outsiders. The decree of the trial court was confirmed up to the Apex Court. According to the Respondents, they are governed by Hanafi School of Mohammadan Law. Title Suit No. 24/1970 filed by them was decreed and the Defendants-Appellants were held cook and servant of Late Sk. Bhaglu. The Appellants' predecessors-in-interest were held to be outsiders. The decree of the trial court was confirmed up to the Apex Court. In the preliminary decree no share was ascertained and allotted to the Appellants or their predecessors in interest and as such no appeal was entertain able at the instance of the Appellants. Once the right, title and claim of the Appellants' predecessors in interest having been adjudicated upon by a court of competent jurisdiction and they were held to be outsiders having no right, title or concern with the suit property, subsequent claim by their successor in interest is barred by the principle of res judicata and same cannot be entertained. 7. Learned lower appellate court heard both the parties and considered the facts and materials on record and came to the finding that the Title Suit No. 24 of 1970 was decided in favour of the Plaintiffs and Defendants-first party. The second party including the predecessors in interest were held to be a rank outsider having no right, title over the suit property. The Appellants have put their claim under the same once again which was negated by the decree of court of law, confirmed up to the Hon'ble Apex Court. Learned lower appellate court held that claim of the Appellants is barred by res-judicata. 8. Mr. J.P. Jha, learned senior counsel assailed the impugned judgment and decree on the ground that apart from the other considerations provisions of Order-22, Rule-4 read with Rule-9 Code of Code of Civil Procedure renders the entire final decree proceeding abated for non-substitution of the Appellants, who were the admitted heirs of their mother Bibi Zubeda. Learned Counsel submitted that after the death of Bibi Zubeda, the Appellants were necessary party being the sons and heirs of Bibi Zubeda and any decree passed in absence of necessary party is a nullity. 9. I have heard learned Counsel for the Appellants and also perused the judgment and decree of learned lower appellate court and other materials on record. 10. It is an admitted fact that the mother of the Appellants-Bibi Zubeda was a party to the Partition Suit. 9. I have heard learned Counsel for the Appellants and also perused the judgment and decree of learned lower appellate court and other materials on record. 10. It is an admitted fact that the mother of the Appellants-Bibi Zubeda was a party to the Partition Suit. She had contested that suit but her claim was rejected on the ground that she is not a co-share'. She filed appeal against the said decree. The appeal was dismissed. She preferred second appeal which was also dismissed She had, therefore, filed Special Leave Petition before the Supreme court, that too was dismissed. Once the claim of share of Bibi Zubeda was adjudicated upon and dismissed by a decree of competent civil court, confirmed up to the Hon'ble Supreme Court, heirs and successors in interest are bound by the same. Learned lower appellate court has considered the said legal position and has rightly held that the claim of Appellants are barred by res-judicata. Since in the said preliminary decree, it was held that the Plaintiffs' mother and brother had no right, title and interest in the suit property, non-substitution of the Appellants after death of their mother in the final decree proceeding does not at all affect the decree. 11. The final decree proceeding is based on the right declared in the preliminary decree. When the right claimed by Appellant's mother was negated in preliminary decree, non-substitution of the Appellants as her legal heirs in the final decree proceeding does not in any way affect the final decree and the Appellants are not entitled to the reliefs prayed for, as rightly held by learned lower appellate court. 12. I, therefore, find no error or any ground, much less any substantial question of law in this second appeal. 13. This appeal is, accordingly, dismissed. Appeal dismissed.