S. Murtaza Fazl Ali, J.This is a Plaintiffs appeal in a suit for declaration that the sale deed registered on 18th of Maghar, 2004 by Defendant No. 1 Uttam Nam in favour of the contesting Defendant is null and void as the executants being congenitally insane was a person of unsound mind The Plaintiffs case was that Uttam Nath was the full brother of the Appellant but as he the was congenitally insane, he was excluded from inheritance and the entire property was inherited by the Appellant who was in possession of the same By a sale deed registered on 18th Maghar, 2004 Uttam Nath sold the entire property consisting of 23 Kanals and 10 Marias in village Khaniyar in favour of the contesting Defendants. The Plaintiff further avers that in spite of the sale deed, the Plaintiff was in possession of the entire lands in dispute and that certain persons taking ad-vantage of the insanity of his brother got various sale deeds and transfers executed by him.

2. The suit was contested on the ground that the Defendant Uttam Nath was not a person of unsound mind but was a fully sane person capable of looking after his interest and had been managing his properties as a prudent owner and that the sale deed was for consideration and further that the possession of the properties in dispute were delivered to the vendee on the execution of the sale deed. The trial Court accepted the plea of insanity taken by the Plaintiff and accordingly decreed the suit. On appeal to the District judge Srinagar, he reversed the finding of the trial court on the plea of insanity but gave a declaration that the sale deed would be void to the extent of one half share in 23 kanals and 10 marlas which legally belonged to the Plaintiff. Hence this second appeal.

I might mention here that before the Court below the passing of consideration was not challenged by the Plaintiff although this was disputed in his plaint. Furthermore reacting the plaint, as it stands, the plea of insanity taken by the Plaintiff is not that the Defendant Uttam Nath was insane at the time of the execution of the sale deed only but that he was insane by birth and was thus disqualified from inheriting the ancestral properties of his father which were inherited by the Plaintiff alone who was the sole heir to them after excluding Uttam Nath.

3. The present litigation has had a chequered career. I understand that several other suits have also been filed with respect to other properties where the Plaintiff has taken the self-same plea of insanity of Defendant Uttam Nath. The Plaintiff also averred in. his plaint that the Court in this case could not go into the question of. insanity which having been.; decided by a Court of competent jurisdiction in a previous Suit operated as res judicata that the lower appellate Court however, negative ed the plea of insanity Both the courts below have, however negatived this contention of the Plaintiff.

4. Mir. Sunder Lal appearing for the Appellant submitted two points before me. In the first place, he has argued that the evidence produced by the Plaintiff in this case and the finding recorded by the Courts below on the plea of insanity was incorrect and assuming that the evidence did not prove this plea, the question of insanity having been decided by an earlier judgment in a previous civil suit operates as resjudicata. In the second place, it was contended that since the Plaintiff was in actual physical possession of the entire properties, the vendor of the contesting Defendants had no right to sell any share of a joint property without obtaining partition of the same. I would first take up the contention regarding the plea of insanily.

5. On the question of res judicata my attention was drawn to a judgment of the District Judge Srinagar in civil suit No. 5 of 1999, dated 22nd Har, 2000 where it was held that the Defendant Uttam Nath had been proved to be mentally infirm and incapable of protecting his interests in the suit. Mr. Lal on the basis of this judgment has strenuously contend ed that the finding of the District Judge afore mentioned operates as res judicata in the present ease. In my opinion, the contention of the learned Counsel for the Appellant is wholly untenable in law.

It is well settled that before the principle of res judicata as embodied in Section 11 of the CPC would apply, the identity of title in both the suits, must be established. A perusal of the plaint in the present suit would clearly show that the question involved in the present case was not that the Defendant Uttam Nath was of weak intellect or of feeble mind but that he was a person of unsound mind being born insane. Thus the question of title involved in the present ease and that in the proceedings before the District Judge referred to above, was essentially different. In these circumstances, it cannot be said that the Plaintiff had established identify of title in the two .suits. The first condition; pi resjudicata being completely wanting in this case, the plea of resjudicata must fan on this ground alone.

Furthermore in the previous suit, only an interlocutory order has been produced before me from which it appears that by this, order, the Court had applied his mind to the question as to whether or not in the suit before him Uttam Nath was capable of defending his interests being a person of weak intellect. Neither the pleadings of the previous suit, nor any document regarding the context in which the order of the District Judge was passed have been produced before me. It is well settled that a bare finding in an interlocutory order, can never operate as resjudicata in a subsequent suit, although such a finding may operate as resjudicata in subsequent proceedings of the same suit, the same cannot be resjudicata in a subsequent suit unless it is shown that Ibis finding was embodied in the decree which was subsequently passed. There is no evens in this case, as to what happened-to the suit after the interlocutory order appointing a guardian for. Defendant Uttam Nath was passed.

I am fortified by a decision Court, in Satyadhyan Ghosal and Others Vs. Sm. Deorajin Debi and Another, where their Lordship observed as follows:

Interlocutory orders which have the force of a decree must be distinguished from other interlocutory orders which are a step toward the decision of the dispute between parties by way of a decree or a final order.

In our opinion, the order of1 remand was an interlocutory order which did not terminate the proceedings and so the correctness thereof can be challenged in an appeal from the final order.

Furthermore, the finding in the judgment referred to above, was given only for the limited purpose of that suit, and that too for the question as to whether not a guardian. for Uttam Nath should be appointed as would be clear from the finding Itself.

I have therefore no hesitation in holding men tam" of proved his interest in this suit Under order it is not of a person of. a guardian ad litem can be appointed but such a guardian ad liter be appointed a person proved to be mentally infirm and a the suit. It is therefore necessary for safe-guarding the interests of the Defendant that a guardian ad litem, on, his behalf should be appointed/ The Plaintiff, is therefore ordered to appoint a proper person as guardian ad litem on behalf of the Defendant to look after his interests fn -this suit,; because Biraiander Nath has refused to act as such The case shall come for; this purpose on 28th "Har," 2000.

On the other hand,, the cigar finding of the was not insane as alleged in the present case Thus it would appeal that the finding given by the District Judge; in the proceedings referred ed to above was sail given either on merits of the suit itself and did not involve the identical question; of title which Involved in, the sent case.

It is not the Plaintiffs case in the present suit that the sale-deed should be declared to be void because the Defendant Uttam Nath being a man of weak intellect was persuaded to execute the sale deed in favour of the con testing Defendants who perpetrated a fraud on him. In fact, such a plea could only betaken either by the executants or by some other per son who was the guardian of the executants if he were actually insane., In the present however, the Plaintiff has founded his title the ground that Uttam Nath being co insane was excluded from inheriting party as a result of which the Plaintiff alone was the sole Jeer of the property This question however, not involved in the suit the judgment of the district Judge was given it is well settled that even where the right claimed in the previous suit id deferent from the right claimed in the subsequent suit, the plea of resjudicata must fail. This was so held in Sunderabai Deshpande and Another Vs. Devaji Shankar Deshpande, .

Analysing therefore, the position is as follows:

1/- That the question of title in the two suits is not identical.

2/- That the properties covered in the two suits also are different.

3/- That the rights claimed in the two fills are also absolutely different.

4/- That the finding in the previous suit was given in an interlocutory order and there is nothing to show that such a finding forms a part of the decree which followed the suit.

6. For these reasons, therefore, the contention of the learned Counsel for the Appellant on the plea of resjudicata must be overruled.

7. On the other hand, if the plea of resjudicata is to operate, it would operate in favour of the Respondents. It appears from a judgment Ex. DWA which was passed in a suit inter-parties that a similar question of congenital insanity was raised before the Court and a finding was given that Uttam Nath was a person of sound mind. It is true that while giving this finding the suit of the Plaintiff was dismissed but nevertheless the finding on the question of sanity was a fundamental part of the decree and, therefore, could operate as resjudicata. Mr. Sunder Lal however, submitted that this finding was given against the Plaintiff who was arrayed as Defendant in that suit, which was eventually dismissed and therefore since the Defendant was precluded from filing an appeal, against this finding it could not operate as resjudicata.

It is true that generally an adverse finding against a Defendant in a decree for dismissal of the suit would not operate as resjudicata but it is equally well settled that where such an adverse finding forms a fundamental part of the decree itself it operates as resjudicata in spite of the fact that the decree is one of dismissal. I am supported in this view by a decision of the Privy Council report in AIR 1927 252 (Privy Council) 2 where their Lordships, in similar circumstances upheld the decision of the High Court and observed as follows:

The learned Judges state in their judgment that when the appeals came on for argument it was pointed out that the foundation/of all title of the Defendants was the sahr deed to the first Defendant; that the decrees of the lower court declared the sale deed to be perfectly valid as between the Plaintiff and the Defendant 1; that owing to the failure to make the: Defendant No. 1 a Respondent there was no appeal from this finding, which had consequently become resjudicata as between the Plaintiff and the first Defendant, and must also he regarded as resjudicata against the Respondents who claimed through the first Defendant or in other words as it was put by the learned Judges at the end of the judgment the finding that the sale to the first Defendant was good carried with it a finding that it was also- good as between the Plaintiff and the purchasers from the firsts Defendant.

As regards this question, their Lordships agree with the learned Judges of the High Court, that the Plaintiff cannot be allowed in these appeals to question the validity of the sale to the first Defendant or to-set up in the first suit the became character of the purchase by the E.N M. K. firm from the first Defendant so long has the findings in favour of the first Defendant, and the E. N. M.K Firm stand and are therefore of opinion that as regards this part of the case, the Plaintiff must fail unless the first Defendant and the E. N. M.K. Firm are made parties to the appeal.

In Murad Biswas Vs. Basti Mandal, , the High Court of Calcutta decided this very specific question in the following words:

Now on reference to the record it seems that the previous suit was one in which the Plaintiff has asked for declaration of his title as the land and for has possession thereof, and the defence of the Defendant in that suit was that he was not a tenant holding under the Plaintiff but was a co-sharer of his. This defence was gone into and ultimately it was found that the Plaintiffs title to the land was mad out but notice had not been served on the Defendant and upon that the suit was not dismissed but a decree was made in the Plaintiffs favour in the following terms:

Ordered that the Plaintiffs alleged title to the land in suit be declared he cannot recover khas possession of the land but he may sue for settlement of fair rent and recovery of nazar if he likes From this decision, the Plaintiff preferred am appeal and the Defendant a cross objection, and the appellate court to which the said appeal was preferred, upheld the decree which the trial court had passed. The facts therefore are not that the suit was dismissed on a preliminary point making it unnecessary for the court to go into the other questions that arose in the suit but that the questions were decided and mae the foundation of a decree declaring the plain tiffs title and one of the prayers in the suit namely, that for khas possession was refused on the ground that notice had not been served the Defendant The real reason on which this doctrine of rea judicata is founded in so far as a case of the present description is concerned, has been given, by the Judicial Committee in the case of Kidnaper Zamindari Co. Ltd. v. Naresh Narayan Roy. ILR 1948 Cal 460 at p. 467: (AIR 1922 PC 241 where their Lordships say that-they do not consider, that a decision will found an actual plea of res judicata where the Defendants having succeeded on the other plea, had no occasion to go further as to the finding against them. This cannot be said of the pre sent case in view of; the, fact that the. Plaintiff title was declared and it is only one of his prayers namely that for has possession was re-fused on the ground that no notice was served We are of opinion that the courts below were right in the view that they took on the question of resjudicata.

8. It would thus appear that the test laid down by the Privy Council of ILK 48 Cal 400 (AIR 1922 PC 241) is that where the particular plea has been fully gone into by a court in a previous suit, and forms a fundamental part of the decree, even if the decree is one of dismissal, of the suit, this finding will operate as resjudicata in the subsequent suit. In these cirstauccshoroforo, it is manifest that the judgment Ex. DWA clearly operates as resjudicata against the Plaintiff and it must be hold that Defendant Uttam Nath has been adjudicated to be fully same person and not a person of unsound mind, in the previous litigation inter-parties where an identical question of title was involved. Furthermore, it would appear that in the suit which was the subject matter of the judgment Ex. DWA, the Defendant Uttam Nath was also examined as a witness and the court after testing the demeanour of the witness before it, was satisfied that he could not be a person of unsound mind. Even therefore, if the said judgment does not operate as resjudicata it has got a strong probative value in order to show that the plea taken by the Plaintiff that Defendant Uttam Nath was not a person of sound mind is false.

9. Coining now, however, to the evidence led by the Plaintiff to prove his plea, I am fully in agreement with the learned Judge that the evidence led by the Plaintiff does not at all justify the conclusion that the Defendant Uttam Nath was a person of unsound mind. It is well settled that in such cases the law always presumes in favour of sanity and the onus is on the person who puts forward the plea of insanity to prove the same. In the instant case, the only evidence led by the Plaintiff consists of two doctors namely Dr. omkar Nath and Dr, Atri. None of these doctors are mental experts and are general practitioners with a degree of simple MBBS.

Dr. Omkar Nath has admitted in his evidence that the was essentially a Pathologist but has been working as a General Practitioner for about two years before the date of his deposition. The witness says that he knew Uttam Nath since he started his career but has not seen him for the last few years. The doctors positive finding is that he considered Uttam Nath to be a person of weak intellect and belonged to the class of persons of feeble mind. The evidence of this witness taken at its face value does not prove the case of the Plaintiff alleged by the Plaintiff namely that the Defendant Uttam Nath was insane from his very birth. There is a World of difference between a person being insane and a person being feeble-minded. The distinction has been clearly brought about in the decisions reported in Mohammad Yakub and Others Vs. Abdul Quddus and Others, and AIR 1944 232 (Nagpur) .

10. Furthermore, the witness admitted in his cross examination that he saw the Defendant Uttam Nath for the first time in the years 1933, 193 and 1935 when he used to enquire about his mother and did not see Uttam Nath doing anything seriously. The witness further states that he has talked to Uttam Nath oh several occasions and found that he gave irrelevant answers and was impulsive. The witness, further states that whenever Uttam Nath came to him the saluted him in the hereditary manner The witness further admits he could not recall any definite question put by him to Uttam Nath. and the answer given by him and His evidence would thus show that his finding regarding Uttam Nath was derived from a very casual and stray contact with Uttam Nath The witness does not appear to have kept Uttam Nath under his observation nor did he examine him thoroughly in order to find out whether he was a person of unsound "mind or for that matter a person of weak intellect. Such evidence can hardly be relied upon to adjudicate on the question as to whether or not a person is of unsound mind. Lastly; as -already indicated above, as this witness was essentially a Pathologist, his evidence does not carry much weight on the question of insanity of Uttam Nath The learned Judge, therefore, rightly rejected the evidence of this witness.

11. As regards Dr. Atri the less said the better. The witness says that some time before 1947, Uttam Nath was examined by him and he had put him some questions of mathematics and common sense and Uttam Nath gave answers after taking some time and some of the replies were riot correct. The witness further admits that Uttam Nath was kept under bis observation only for 15 .minutes on two coca sions. The witness further made a categorical, admission that it was not possible for him to say whether Uttam Nath could protect his in tersest or not In cross examination the with ness further admitted that he was not an en pert of mental diseases.

12. The witness further admits that he did not enquire any further particulars from the Defendant Uttam Nath nor did he enquire of him about his daily routine of personal Kfe.-A1 perusal of his evidence would clearly show that-when the witness himself was. not an expert of mental diseases and did not examine Uttam Naft thoroughly and was himself not in a position to state whether or not Uttam Na& was capable of protecting his interest his evidence can harshly be of any assistance to the Plaintiff. This is all the evidence led by the Plaintiff in sup port of the plea of insanity of Uttam Nath taken by him.

Apart from this, the learned District Judge has pointed out that no neighbor or relation of Uttam Nath was examined to show that he was not mentally sound., Even the plaint .himself has not, chosen to appear as a with to swear that his brother Uttam Natl was congenitally insane. The non exam is nation of the Plaintiff, is the stroc possible circumstance in my opinion, discredit his case that the Defendant Nath was person of unsound mind because being a full brother he would have in the best position to know about the cooptation Uttam Nath absolutely no Evidence all to, show that Uttam Nath was co insane so as to disqualify from inherit, the positive case made out by the his plaint in view of these circumst am satisfied Plaintiff has miss felled to probe that Uttam Nath was a advantage of the fact that his brother was a simpleton the Plaintiff east covetous eye on hi Property and with a view to grabbing the same has bolstered up a false plea of insanity.

13. I would now take up the question of possession

14. On this part of the ease also, there is a very well-reasoned finding of the learned Judge, which is based on complete consideration of the evidence led by the parties. Learned Counsel for the Appellant, however, drew my attention to the evidence of PW Sona Khan Lam bardar who stated that the revenue of the land in question was paid solely by the Plaintiff. From this the learned Counsel for the Appellant wants me to draw an inference that the Plaintiff alone was in possession of the property. I am, however, unable to agree with this contention. Although there is oral evidence of Sona Khan yet it is not corroborated by any revenue receipt or by the Bach which is a register maintained for the collection of land revenue. Indeed, if it was the Plaintiff who had paid the land revenue, he should have called for the said register in order to corroborate the evidence of Sona Khan PW.

My attention was then drawn to the evidence of P Ws. Razaq Mir, qadir Rather, and Ghulam Hassan to show that these witnesses who were the actual tenants of the Plaintiff deposed that they were in possession of the land and paid cash rent to the Plaintiff and not to the Defendant Uttam Nath. A perusal of the evidence of these witnesses, does not, however, show that the Plaintiff was in possession of the one the. By land. The total area of the land in question is 23 Kanals and 10 Marias in which both Plaintiff and Defendant Uttam Nath have half share. According to the evidence of witnesses the total area of land cultivated these witnesses comes roughly to about 10 to which represents only one half share of total land i.e. to say the share of the 12 the Plaintiff alone and not the share of the defend date.

On the other hand, the Defendants have Produced some witnesses namely Rasool Pandit, Badnr-u-din Abdullah, and also two Patwari. The witnesses examined by the Defendants clearly show that the land in question was in posses-lion of the Defendant Uttam Nath to the extent of is share and after the execution of the sale deed, possession was delivered to the vendees and the tenants surrendered their holding. Reliance was placed by the learned Counsel for the Appellant on the fact that the nether of Uttam Nath was not entered in the hare Ghdawari and Jamabandis. This, however is clearly explained by the evidence of one of the Patwari is which is to the effect that since the Plaintiff had filed several suits against the Defendant an application was made to the revenue department for not making the entry until the disposal of that suit. On the other hand, some documents have been produced by the Defendant which shows that Uttam Nath has been in possession of a portion of the properties. In view of these circumstances I hold that the Defendants have led sufficient evidence to show that Uttam Nath was "in possession of the properties to the extent of his share.

15. No other point was raised before me.

16. The result is that the appeal fails and is accordingly dismissed with costs.

17. Leave to appeal under the Letters Patent has been asked for by the Appellant, which is refused.