MRIGENDRA NATH SAHA Vs. KRISHNA CHANDRA SAHA

JUDGEMENT

(1.) This is an appeal by the plaintiffs in a suit for ejectment. In 1915 the plaintiffs sued the defendants for arrears of rent for the years 1319 and 1320 on the allegation that they were their tenants. The Trial contract held that the relationship of landlord and tenant was established, and decreed the suit. Upon appeal, the Subordinate Judge reversed that decision, as he came to the conclusion that the plaintiffs had failed to prove the relationship of landlord and tenant. This judgment was pronounced on the 31st August 1915. On the 23rd September 1916 the plaintiff instituted the present suit to eject the defendants, on the basis of the decision in the previous suit that the defendants were not their tenants. The Court of first instance decreed the suit. Upon appeal, the Subordinate Judge has dismissed the suit, although he has held that the title of the plaintiffs had been established. We are of opinion that the decree made by the Subordinate Judge cannot be supported.

(2.) The Subordinate Judge has clearly misunderstood the effect of the decision in the previous case. The judgment in the previous case is conclusive between the parties upon one point and one point only, namely, that there was no relationship of landlord and tenant between the parties during the period for which rent was claimed in that litigation, that is to say, during the years 1319 and 1320. That was the question directly and substantially in issue between the parties in that litigation and the finding thereon, which formed the foundation of the decree of dismissal, is conclusive. Ekabar Sheikh v. Hara Bewah 8 Ind. Cas. 660 : 15 C.W.N. 335 : 13 C.L.J. 1 Fanchu Mandal v. Chandra Kanta Saha 12 Ind. Cas. 9 : 14 C.L.J. 220 Hara Chandra Bairagi v. Bepin Behary Das 6 Ind. Cas. 860 : 13 C.L.J. 38, Nanji Koer v. Umatul Batul 13 Ind. Cas. 40 : 15 C.L.J. 653, Bomrni Banyan Naidu v. Bommidi Suryanarayana 17 Ind. Cas. 445 : 37 M. 70 : 12 M.L.T. 500 : 23 M.L.J. 543 : (1913) M.W.N. 1, Veluswamy Naiker v. Bommachi Naiker 21 Ind. Cas. 219 : 25 M.L.J. 324 : 14 M.L.T. 229 : (1913) M.W.N. 776 : 5 L.W. 299 Rama Krishna Naidu v. Krishnaswami Naidu 52 Ind. Cas. 34 : 36 M.L.J. 641 : (1919) M.W.N. 7 : 25 M.L.T. 88 : 9 L.W. 180. But it is a mistake to attribute a larger measure of finality to that decision. Consequently, is open to the plaintiffs to establish that they hid a subsisting title and that the defendants were liable to be ejected, because they were not tenants, as they themselves had pleaded in the rent suit. Further, the plaintiffs were competent to establish that their claim to eject the defendants was not barred by limitation, because the plaintiffs had, previous to the years 1919 and 1320, possession through the defendants as their tenants. These questions must be decided on the evidence on the record.

(3.) The result is, that the decree of the Subordinate Judge is set aside and the casa remanded to him for re consideration. 14. Costs will abide the result. Fletcher, J. 15. I agree.