EKBALJAN PESWARI Vs. TARABAI BAIJI

JUDGEMENT

(1.) THESE two appeal are at the instance of the same plaintiff and they arise out of two suits for Declaration of the tenancy right of the plaintiff' and for possession. The only question that is involved in these appeals is whether the decision in a former suit will operate as resjudicta in the present suits

(2.) IN the present suits, the plaintiff Ekbaljan Peshwari has prayed for a declaration of her tenancy right in respect of the first floor of premises no. 263, Bowbazar Street, Calcutta under one Sm. Jarat Kumari Dassi and after her death under her executor radha Kishen Roy, since deceased and mohan Kishore Roy as the joint executors to her estate. The said Mohon kishore Roy also died during the pendency of the suits and the defendant no. 3 Dipak Basu, Barrister at Law was substituted in his place as the Receiver to the estate of the said Sm. Jarat kumari Dassi. It is alleged that the defendants Nos. 1 and 2 Sm. Tarabai baiji and Sm. Pannabai Baiji forcibly occupied the first floor of the said premises during the absence of the plaintiff from Calcutta. It is further alleged that the defendant No. 3 has accepted the defendants Nos. 1 and 2 as direct tenants under him. The plaintiff has accordingly, prayed for a declaration of her tenancy right in respect of the suit premises and also for a decree for possession of the same.

(3.) IT appears that previous to the present two suits out of which these appeals arise, a suit being Suit No. 726 of 1934 was instituted in the Original Side of this Court. In the said suit, the plaintiffs were the present plaintiff, Ekbaljan Peshwari, and one Omar Khan, and the defendants were the same as in the present suits, except that the defendant No. 3 was the said Mohon Kishore Roy, the surviving executor to the estate of Sm. Jarat Kumari Dassi. In that suit, the plaintiff No. 2 Omar Khan alleged chat he was the husband of the plaintiff No. 1 Ekbaljan Peshwari and prayed for a declaration that he alone was the direct tenant in respect of the first floor room of the said premises No. 263, Bowbazar Street, Calcutta, now Bepin Behari Ganguli Street, his wife Ekbaljan Peshwari being his benamdar, and the defendants Nos. 1 and 2, that is, Tarabai Baiji and Pannabai Baiji were his licenses He also prayed for possession of the suit premises, that is, the first floor rooms of the said premises No. 263, Bowbazar Street, Calcutta. Although the said suit was instituted by the two plaintiffs Ekbaljan Peshwari and Omar Khan, it was really instituted by the second plaintiff Omar Khan for self and as the attorney of Ekbaljan Peshwari under a power of attorney alleged to have been executed by her on May 15, 1963 It may be stated at this stage, that at the time the said suit was instituted in this Court, another suit being Suit No. 166 of. 1961 was pending in the City Court, Calcutta which was instituted by Omar Khan against Ekbaljan Peshwari. In the City Court suit Omar Khan prayed for a declaration that Ekbaljan Peshwari was his legally married wife under the Mahamedan Law. It appears that Ekbaljan appeared in the said suit and contested the same by filing a written statement denying the allegation of Omar Khan that she was the legally married wife of the latter. Omar Khan did not proceed with the said suit as it was alleged by him that Ekbaljan had left India for Kabul on February 8, 1962. The suit was consequently dismissed for non-prosecution.