RAMKARAN SINGH Vs. SM PARBATI KUER

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of title and recovery of possession in respect of 4.53 acres of land in village Mohammadpur Abgila, Touzi No. 2928, out of a total area of 7.20 acres of land in bhata No. 2 described in schedules 1 to 3 of the plaint. The suit land, admittedly, was the bakasht land of the sixteen annas proprietor of this touzi which belonged originally to one Sheo-gulam Singh. Sheogulam had five sons, Dal-singhar Singh, Ramkhelawan Singh, Prahlad Singh, Parasnath Singh and Narasingh Singh. After the death of Sheogulam, the five sons named above held three annas four dams share each in the bakasht land mentioned above. It appears that the share of Dalsinghar ultimately came to be held by one Jugan Singh, who purchased his interest by a registered sale deed dated 18-4-1912. Jugan Singh's son, Mahendra Singh, is plaintiff 12 of the plaintiffs 3rd party, claiming 1.57 acres of land. The branch of Parasnath constitutes plaintiffs 1st party claiming 1.47 acres and the branch of Narsingh Singh constitutes plaintiffs 2nd party claiming 1.55 acres. The branch of Ram-khelawan is included in defendants 2, 3 and 4, and the branch of Prahlad is represented by Bankey Bihari Singh, defendant 5. Defendant 1 is Parsan Singh, who alone has contested the suit. The case of the plaintiffs was that the entire 7.20 acres of bakasht land comprised in khata Ho. 2 still continue to be in khas possession of the five branches of the family who are descendants of Sheogulam Singh, and that the defendants other than defendant 1 are in collusion with him and they admitted interference with the plaintiffs' possession in respect of their share of the bakasht land entered in schedules 1 to 3 of the plaint. They wanted to harvest the rabbi crops cultivated by the plaintiffs, which led to an apprehension of the breach of the peace. This gave rise to a proceeding under Section 144, Criminal P. C., in the Court of the Sub-Divisional Officer, Dinapore, but the order in that proceeding was made absolute against the plaintiffs. The plaintiffs, however, continued in possession of their aforesaid shares, but felt the necessity of seeking a declaration of title in view of the order under Section 144, Criminal P. C., being passed against them. They accordingly prayed for declaration of title and confirmation of possession and, in the alternative, for recovery of possession if the defendants in course of the pendency of the suit dispossessed the plaintiffs of the suit land.

(2.) Parsan Singh, defendant 1, who alone contested the suit, however, denied the plaintiffs' title to get khas possession of the land. It was pleaded that defendant 1 obtained settlement of the land from the sixteen annas landlord on a rental of Rs. 47/8/- and payment of a premium of Rs. 500/-sometime in Jeth 1317 F's., since which time defendant 1 has continued in cultivating possession of the land as a raiyat. The plaintifts' suit is mala fide and barred by res judicata and limitation. It was alleged that after the settlement of 1317 Fs. in his favour by all the maliks, some of the co-sharer landlords instituted rent suits against this defendant. One of these suits was in 1925 which was framed under Section 143A, Bihar Tenancy Act and was decreed, and in which it was held that defendant 1, in fact, had taken settlement of the land. There was another rent suit (Rent Suit No. 3067 of 1938) filed in the Court of Munsif, 2nd Court, Patna by defendant 5 in which all the co-sharer landlords were impleaded, and in which it was held, 011 appeal, after a hard contest by the other co-sharer landlords, that this defendant, in fact, obtained a raiyati settlement of the entire land, and the plaintiff's suit was decreed by the lower appellate Court. The judgment of the lower appellate Court, which reversed the judgment of the trial Court that had dismissed the suit, was upheld in appeal by the Hon'ble Court. The finding, therefore, as to the status of defendant 1 would operate as res judicata. The plaintiffs were never in possession of the suit land since 1910 and that defendant 1 was in possession and paid rent duly, and as such he could not be ejected and the plaintiffs could not be declared to be in khas possession of the land.

(3.) Both the Courts below concurrently accepted the defence case and dismissed the plaintiffs' suit. The learned Advocate-General has contended in support of the appeal that the judgments of the Courts below are erroneous inasmuch as their finding that defendant 1 is a raiyat in respect of the entire 7.20 acres of land is based mainly upon their minds independently to the facts of the case and if, therefore, it can be established in this Court that the present suit is not hit by the principle, of res juuicata,, the decrees of the Courts below would have to be set aside. The point of res judicata arises in the following circumstances. I have stated that there was a suit, being Rent Suit No. 3067 of 1938, filed by Bankey Bihari Singh against the defendant for his share of the rent impleading his co-sharers as pro forma defendants. That was a suit for rent against Parsan Singh, and in view of the nature of the claims set up by the plaintiff, Bankey Bihari Singh, the trial Court ordered that the suit for rent against Parsan Singh might proceed as a money suit and that the pro forma defendants might be expunged from the record. This gave rise to a civil revision filed by Bankey Bihari Singh, who was dissatisfied with the order of the Court expunging the names of the pro forma defendants from the records of the suit, and Hon'ble Dhavic, J. directed that if the plaintiff Bankey Bihari Singh wanted a rent decree the pro forma defendants, who were the co-sharer landlords, must be kept on the record, and that the order of the trial Court expunging them, must be set aside. It was, however, directed by this Hon'ble Court that Bankey Bihari Singh must frame his suit as being one under Section 148A, Bihar Tenancy Act as a suit by co-sharer landlord for rent in the circumstances referred to in that section when the other co-sharer landlords would not join him or would not disclose to him what rent was due to them. Bankey Bihari Singh accordingly amended his plaint in terms of Section 148A, Bihar Tenancy Act, and the suit as against Farsau Singh, the alleged tenant-defendant 1 of this suit, and other co-sharer landlords proceeded on. The trial court, however, dismissed the suit holding that the settlement in favour of Parsan Singh was not proved. It appears that the main contest in that suit was between Bankey Bihari Singh and his co-sharer landlords as to whether settlement in favour of Parsan Singh was a genuine settlement. Bankey Bihari Singh being dissatisfied with the judgment of the trial Court went up in appeal and the learned Subordinate Judge of Patna was pleased to allow the appeal holding that the settlement in favour of Parsan in respect of the entire 7.20 acres of land under Khata No. 2 was made out and the plaintiff was accordingly given a rent decree for his share of the rent. This gave rise to Second Appeal No. 1032 of 1941 of this Court, and this Court was also pleased to uphold the judgment of the learned Subordinate Judge. It was urged on behalf of defendant 1 Parsan Singh, that the appellate judgment of that rent suit would operate as res judicata inasmuch as the identical question with regard to his status was gone into as a necessary issue in Rent Suit No. 3067 of 1938 in presence of all the co-sharer landlords and the defendant 1 and that it cannot be reopened now in the present litigation. It may be stated that the main controversy between the parties has centred round this question.