SITA RAM Vs. HUKMI RAM

JUDGEMENT

(1.) THIS is a defendants' second appeal arising out of a suit for possession, damages and mesne profits in respect of a house. The question of law which has been sharply debated before me in the present case is of some importance and may be formulated as under:-

(2.) THE material facts of the case are that the plaintiffs claimed themselves to be the owners of the house in dispute and alleged that they had formerly taken the land on lease and at that time a Kachcha house stood thereon, that they built the disputed house in the year 1956, that two kothris in suit were let out at Rs. 5/- per month to the defendants Nos. 1 and 2, that they did not pay rent to the plaintiffs des pite notice of demand and also denied the plaintiff's title. The plaintiffs then brought a suit against the defendant No. 1 for eject ment and arrears of rent. It was held in that suit that the plaintiffs had no title in-the property in suit and that the defendants Nos. 1 to 3 were the owners of the house in question and the site thereof belonged to them as lessees of the plaintiffs. The plain tiffs lease stood forfeited, but the plain tiffs' suit was dismissed on 22-8-1960. That suit was numbered as 845 of 1959. The plaintiffs then filed the present suit for declaration of title and possession over the two kothris. The mesne profits and dama ges were also claimed at the rate of Rupees 10/- per month

(3.) THE trial Court held that the suit was barred by res judicata, that the plaintiffs were not the owners of the house in question and that the defendants were not the permanent lessees of the site. With these findings the suit was dismissed. The plaintiffs went up in appeal against the decree of the trial Court which was allow ed and the suit was decreed. The findings recorded by the lower appellate Court were that the plaintiffs had constructed the house in suit and it belonged to them and further that the present suit was not bar red by res judicata. Aggrieved by the decree of the lower appellate Court the defendants have come in second appeal to this Court.