Supreme Court of India

MUKHTIAR AHMEDversusSMT. HUSAN BANO AND ORS.

Citation: 1996 INSC 246
Decided: 14 February 1996
Disposal: Dismissed
Bench: K RAMASWAMYG B PATTANAIK

Holding

The earlier decree operates as res judicata, precluding the appellant from claiming a two‑thirds share.

Summary

Mukhtar Ahmed filed a suit seeking a declaration that he was entitled to a two‑thirds share in a house as a co‑owner. Earlier, in a suit filed by a co‑sharer, the court had determined that the co‑sharer was only entitled to a one‑fifth share, and that decree became final. The issue before the appellate court was whether the earlier decree barred the later suit for a larger share under the doctrine of res judicata. The court held that the final decree of the earlier suit operated as res judicata against the co‑owners, preventing the appellant from claiming a two‑thirds share. Consequently, the High Court’s dismissal of the suit was affirmed and the appeal was dismissed.

Issues considered

Whether the decree in the earlier suit operates as res judicata to bar the later suit for a larger share in the property.

Legislation cited

Code of Civil Procedure, 1908s. 11

Subjects

Res JudicataCivil ProcedureProperty ShareCo‑ownershipFinal Decree

Judgment

                          MUKHTIAR AHMED                                          A
                                        v.
                     SMT. HUSAN BANO AND ORS.

                           FEBRUARY 14, 1996
                                                                                  B
            (K. RAMASWAMY AND G.B. PATTANAIK, JJ.]

        Code of Civil procedure, 1908

       Section 11-Res Judicata-Suit filed by co-sharer-Finding recorded
that he was entitled to 1/5th share in the prope1ty and not 2/Jrd share-Sub-      C
sequent suit for declaration that he was entitled to 2/Jrd share-Finding in
earlier suit operates as res judicata-Hence subsequent suit 1ightly dismissed
by the High Court.

        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1812 of D
1978.

     From the Judgment and Order dated 18.5.78 of the Allahabad High
Court in Second Appeal No. 1341 of 1968.

        R.K. Mehta for the Appellants.                                            E
        Aseem Mehrotra and P.K. Jain for the Respondents.

        The following Order of the Court was delivered :

      The appellant had laid the suit for declaration of 2/3rd share of the       F
house in his favour, on the premise that he was a co-owner. It is not in
dispute that on a previous occasion in a suit filed by the co-sharer, a finding
was recorded that he was not entitled for 2/3rd share but to l/5th share.
The said decree became final. In view. of the matter, it operates as res
judicata as against the co-owners. He cannot claim any share in the suit for      G
2/3rd share. The High Court, therefore, was right in dismissing the suit. We
do not think there is any legality in the finding recorded by the High Court.

        The appeal is accordingly dismissed. No costs.

G.N.                                                       Appeal dismissed. H
                                     637

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