RAMCHARITAR SAH Vs. BIFAI MAHTO

JUDGEMENT

(1.) The question involved in this case is whether the Small Cause Court committed any error of law in refusing to return the plaint for being filed in proper Court having jurisdiction to determine the question of title.

(2.) The plaintiff brought the suit claiming rent of a house which he alleged the defendants had taken on monthly rent. The main ground of defence was that the plaintiff had no title and the defendants had not taken settlement of the house from him. The learned Munsif held that it was not open to the defendants to raise question of title since the doctrine of res judicata will operate. In 1946 the plaintiff had previously brought a title suit against the defendants for recovering house rent and for ejectment. In that suit the defendants appeared and filed written statement but on the date fixed for final hearing the defendants were absent and the suit was decreed ex parte. The defendants preferred an appeal which was dismissed by the District Judge. In second appeal the decree was modified by the High Court. The claim for arrear of rent was granted but the plaintiff was not granted & decree for ejectment since the notice to quit was held to be invalid in law. The Small Cause Court held that the decision in the previous suit would operate as res judicata and it was not open to the defendants to agitate again the question of title. Accordingly, he refused to return the plaint under Section 23, Small Cause Courts Act.

(3.) In support of this rule, Mr. Prem Lal contended that the Small Cause Court was erroneous to hold that the question of title was barred on the principle of res judicata. In my opinion, this argument is not correct. Learned counsel referred to Pardip Singh v. Ramsunder Singh, A. I. R. (36) 1949 Pat. 510: (30 P.L.T. 434) and contended that the question of title had been gone into only incidentally and collaterally in the previous suit and so the decision would not be res judicata. The principle is well settled that the decision in a rent suit is not res judicata on the question of title unless the question of title was expressly raised and was expressly decided between the parties and in each case it is necessary to examine carefully the decision in the rent suit before any opinion can be formed as to whether it operates as res judicata on the question of title or not. The difference will be apparent from two Privy Council decisions, viz., Run Bahadoor Singh v. Mt. Lucho Kuer, 12 I. A. 23: (11 Cal. 301 P. C) where it was held that the decision was not res judicata as the question of title had been gone into only incidentally and collaterally, and Radhamadhub Holdar v. Manohar Mookerji, 15 I. A. 87: (15 Cal.56 P. C.) where the question of title was directly decided in a rent suit and the decision was held to be res judicata. As explained in Gnanada Gobindo Choudhur's case, 43 C.L.J. 146 : (A. I. R. (13) 1926 Cal. 650).