RAMCHANDRA GANESH KULKARNI Vs. LAXMAN HARI MAINKAR

JUDGEMENT

(1.) PETITIONERS were original defendants and respondents are the original landlords-plaintiffs. The plaintiff-respondents filed a suit in the Courts below under the provisions of the Bombay Rent Act, against the defendants for eviction, on the ground of arrears of rent, bonafide requirement of the plaintiff-landlord, and that the tenants have acquired suitable accommodation. A notice was also given by the landlord to the tenant-defendants dated 24th January, 1977. This notice is by way of a letter and not in the regular form of notice. The landlords filed the present suit for eviction of the defendants-tenants on the ground stated above. Before filing the present suit, the plaintiffs had earlier filed a suit against the present defendants-tenants for eviction. That suit was decreed in 1968, but the very decree was set aside in the appeal in Civil Appeal No. 380 of 1968 by the Appellate Court's judgment dated 21.11.1968. The suit of the plaintiff in that case came to be dismissed by the appellate Court. In that case a finding was recorded that the present petitioner No. 1 alone is exclusive tenant of the suit premises. An issue was raised whether present petitioner Nos. 1 and 2 can claim joint tenancy. Their claim was negatived. After the said suit was dismissed, the present plaintiff-landlord filed the present suit on 28.4.1977. This suit was tried by the learned Trial Judge. The defendants submitted that they have paid the rent. They have also disputed that defendants have acquired suitable alternative accommodation.

(2.) THE trial Court disbelieved the case of the defendants and held that notice is valid and they are in arrears of rent for more than 10 years i.e. from 1967 to 1977. It also found that finding given in the earlier suit that petitioner No. 1 is exclusive tenant of the suit premises is binding on the defendants. In the result, it passed a decree in favour of the landlord for eviction of the suit premises i.e. house.

(3.) TWO points are urged before me by the learned Advocate for the petitioners-defendants. First submission made by the learned Advocate for the petitioner was that petitioner No. 2 who is in occupation of the suit premises is a tenant of the house, although a finding is recorded in the earlier suit that petitioner No. 1 is exclusive tenant, this finding does not operate as res judicata in this case. I am afraid that this contention is not well founded for several reasons. Petitioner Nos. 1 and 2 are brothers. In the former suit, issue was raised whether tenancy is joint or individual. The Court recorded a finding on that issue that petitioner No. 1 is the exclusive tenant of the suit premises and petitioner No. 2 who is brother of petitioner No. 1 was not a tenant. In short, status of petitioner No. 1 as tenant was declared by the court in former suit and the finding is binding on the petitioner-defendants in the present suit between the co-defendants, it is settled that finding in order to operate res judicata there must be some conflict interest between the two and such issue has been decided by the Court. From the record it appears that issue in regard to joint tenancy was raised and the Court recorded a finding that petitioner No. 1 alone is the tenant of the suit premises and petitioner No. 2 cannot claim joint tenancy. In view of this finding in the earlier suit it is difficult to appreciate the contention of the learned Advocate for the petitioners that the petitioners can raise this same point again. Petitioners are bound by the said judgment because between the co-defendants it satisfies all the conditions laid down in such case (kindly see A.I.R. 1950 P.C. 17). I, therefore, do not agree with the contention of the learned Advocate for the petitioner that bar of res judicata is not attracted.