BISWANATH BAGCHI Vs. JITENDRA NATH SARKAR

JUDGEMENT

(1.) This appeal is on behalf of the Plaintiffs against the decision of our learned brother Sen J. dismissing the Plaintiffs' suit on the ground of res judicata. The question of res judicata is founded on a decision in a previous suit for rent, being Rent Suit No. 32 of 1942. In that suit Defendant No. 1, Jitendra Nath Sarkar, claimed rent for first two quarters of 1348 B.S. on the strength of a deed of sale executed by one Sitala Bala who in her turn had acquired title under a conveyance executed by her mother Katyayani who had a limited interest of a Hindu widow. In that suit for rent the tenant pleaded that the Plaintiff of the rent suit, Jitendra Nath Sarkar, had no right to recover rent on the ground that the deed of sale by Katyayani to Sitala Bala was not for legal necessity and was inoperative after the death of Katyayani which took place on Magh 10,, 1347 B.S. The pro forma Defendants in that rent suit were the Bagchis, who were the co-sharer landlords of the holding in suit and who were also the reversioners to the estate of Katyayani's husband. The decision in the rent suit was based on the follow-finding:

(2.) The right of Jitendra Nath Sarkar to recover rent for the period under claim in the rent-suit was specifically based on the validity of the conveyance by Katyayani to Sitala Bala. In the present suit the Plaintiffs seek to challenge the Defendants' title on the ground that the self-same deed is not supported by legal necessity and has become inoperative on Katyayani's death and that the Plaintiff's are entitled to recover possession on declaration of title. It cannot be disputed that the decision in the present suit on the question of title was directly and specifically decided in the rent-suit.

(3.) Mr. Roy Choudhury appearing for the Appellants contends that that finding was unnecessary because, on an assumed state of facts, namely, that the reversioners did not avoid the deed of sale by Katyayani to Sitala Bala, a decision of this question would have been uncalled for.