ALTAP ALI Vs. SHEIKH MOHATAP

JUDGEMENT

(1.) In its original form the plaintiff's suit included a prayer for amendment of the settlement khatian in which was recorded the defendant's name as to 1/3 share of the tank in suit. But, subsequently, in the first Court, that prayer was withdrawn, and the decree passed by the Munsif, in favour of the plaintiff, was one declaring his exclusive right to the disputed tank and confirming his possession in the same. In appeal the District Judge of Tippera has affirmed that decree.

(2.) In second appeal, the contentions submitted on behalf of the defendant-appellant are these: first, that, inasmuch as the plaintiff's suit under Section 106 of the Bengal Tenancy Act was withdrawn, no further suit will now lie; secondly, that the defendant's name being entered as to 1/3 share (in the khatian), the presumption is in his favour, and that it was incumbent on the plaintiff to rebut it; thirdly, that the lower Courts have erred in having regard to the qabuliat, Exhibit 1, executed by the plaintiff in favour of his landlord, because the original was not called for and it would, in any case, be irrelevant against the defendant, and, fourthly, that a suit like this is not maintainable in the Civil Court.

(3.) On the last contention, the weight of authority is undoubtedly opposed to the view that such a suit as this is not maintainable in the Civil Court. Among the cases, I may mention that of Mukti Nath Thakur V/s. Hon ble Moharaja Rameshwar Singh Bahadur 15 C.W.N. 57 : 7 Ind. Cas. 340 (Woodroffe and Teunon, JJ.). This contention is, to some extent, connected with the first argument of the learned Vakil. The pleadings show that the defendant asserted that the plaintiff's suit was obnoxious to the plea which is called in the vernacular dobara dosh, literally, double fault . On this plea the parties went to trial in the first Court as raising the plea of res judicata. It was never pleaded that the plaintiff's suit under Section 106 was withdrawn without leave to bring a fresh suit. The learned Vakil relies on Section 373 of the old Code of Civil Procedure which provided that if a plaintiff withdraws from his suit, without the permission of the Court, he shall be precluded from bringing a fresh suit for the same matter. The meaning of that section is that the plaintiff shall be precluded from bringing a fresh suit in that, or any, Court of similar or coordinate jurisdiction. It is not, in my opinion, the meaning of that section that a plaintiff, when defeated in a suit under Section 105 of the Rent Law, will be precluded from bringing his ordinary action in the regular Civil Courts. I think, therefore, there is no substance in the first and fourth arguments of the learned Vakil.