RAGHUBANS MANI PRASAD NARAIN SINGH Vs. HARDEO SINGH

JUDGEMENT

(1.) This second appeal by the plaintiffs was referred to a Division Bench by a Single Judge, and raises a somewhat perplexing question of res judicata. The facts are the following. The present appellants filed a suit for recovery of possession of 4.90 acres of land comprised in holding No. 453, situate in village Aima Nasirullah Chak, tauzi No. 444C Lakhraj. They also claimed mesne profits from the 14th of Baisakh, 1348 Fasli, or, in the alternative, a decree for rent for the years 1349 to Jeth, 1352 Fasli, and mesne profits thereafter up to the date of recovery of possession. The appellants claimed that they were the 16 annas proprietors of the land in question which, according to the appellants, was their 'khud-kasht' (proprietor's private land). The appellants alleged that one Hiraman Singh, father of defendant 1, was a lessee of the land from the appellants' predecessor-in-interest on an annual rental of Rs. 74/-, and in the survey record-of-rights the land was recorded as "bakasht thikadar". On the termination of the lease, Hiraman gave up possession, but again took settlement of the land under a registered kabuliat dated 19-6-1928, for the period 1336 to 1342 Fasli on the enhanced rental of Rs. 115/- per year; but as the kabuliat was inoperative to create a lease in law, Hiraman remained in possession as a yearly tenant during the period of the lease and even thereafter, until on the 13th of Baisakh, 1348 Fasli, defendant 1 surrendered the land in pursuance of an agreement arrived at between him and the father of the appellants. The case of the appellants was that their father came in possession of the land after the agreement on the 13th of Baisakh, 1348 Fasli, but certain criminal proceedings were started between the parties in respect of the land in question and by an order dated 8-1-1943, the criminal Court found defendant 1 to be in possession in a proceeding under Section 144, Criminal P. C., and on the strength of that order defendant 1 dispossessed the appellants from the land. Thereafter the appellants gave a notice to defendant 1 on 21-11-1944, asking the latter to give up possession by the 30th of Jeth, 1352 Fasli. As defendant 1 did not give up possession, the appellants brought the present suit for recovery of possession with mesne profits.

(2.) The suit was contested by defendant 1, who is the principal respondent before us. His case was that the land was not the proprietor's private land, but was his ancestral raiyati land. It was alleged that the land had been in possession of the family of the respondent from before the survey, and the survey entry to the effect that the land was "bakasht thikadar" was incorrect. The respondent denied the allegation of the appellants that there was an agreement and surrender on the 13th of Baisakh, 1348 Fasli, and the case of the respondent was that he had been in possession of the land all along and had acquired a right of occupancy therein.

(3.) The learned Munsif who dealt with the suit an the first instance came to the following findings: (Z) he held that the question as to whether the respondent was a thikadar or a raiyat had been decided in a previous litigation between the parties, and, therefore, under Section 11, C. P. C., the question could not be tried again; (2) applying the aforesaid principle of res judicata, the learned Munsif held that the respondent was a thikadar; he further held that even on merits the respondent was a thikadar and had acquired no right of occupancy in the land in question; (3) he disbelieved the case of the appellants that there was any surrender or agreement on the 13th of Baisakh, 1348 Fasli, and held that the respondent had all along been in possession of the disputed land from before the entry in the survey record-of-rights; and (4) the learned Munsif held that as the Kabuliat executed by Hiraman on 19-6-1928, was inoperative in law to create a lease, the position of the respondent was that of a lessee from year to year and was governed by the provisions of Section 116 of the Transfer of Property Act, and such a lease could be determined by six months notice under Section 106 of the Transfer of Property Act, and the learned Munsif accepted the plea of the appellants that they had validly terminated the lease by the notice dated 21-11-1944. On these findings the learned Munsif gave a decree to the appellants for recovery of possession together with rent for two years and mesne profits thereafter. The present respondent then preferred an appeal which was heard by the learned Second Additional Subordinate Judge of Patna. The learned Subordinate Judge reversed the finding of the learned Munsif on the question of res judicata and held that the issue as to the status of the respondent was not barred by res judicata. He then considered the question of the status of the respondent on merits and came to the following findings: (1) that the appellants had failed to prove that the land in question was proprietor's private land within the meaning of Section 116, read with Section 120 of the Bihar Tenancy Act; (2) that the entry in the record-of-rights to the effect that the land was "bakasht Thikadar" did not show that the land was proprietor's private land; and (3) that the land was settled with the father of the respondent for cultivation of the land by the latter and the status of the respondent's father was that of a raiyat and not that of a tenure holder; therefore, under the provisions of Section 21 of the Bihar Tenancy Act the respondent's father acquired a right of occupancy, inasmuch as he was a settled raiyat of the village; and furthermore, as the respondent had been in possession for more than twelve years since the settlement in 1928, he had acquired a right of occupancy in the land. On these findings the learned Subordinate Judge dismissed the claim for eviction, and held that the present appellants were entitled to recover rent only from the respondent at the rate of Rs. 74/-per year.