VYANKATESH SHIVRRAM GOKHALE Vs. KRISHNA BAL CHAVAN

JUDGEMENT

(1.) The plaintiffs-respondents claimed a declaration against the defendant-appellant that they were permanent tenants in the khoti village in suit. The defendant appellant alleged that they wore annual tenants and raised the plea of res judicata by reason of the decree in civil suit No. 478 of 1921 and appeal No. 280 of 1922. Both the lower Courts decreed the claim. The defendant appeals.

(2.) The two questions in appeal are, firstly, whether the present suit is barred by the decision in the previous suit, and, secondly, whether the plaintiffs-respondents have proved that they are permanent tenants.

(3.) On the first point the facts and the causes of the former litigation are pertinent. The landlord, the present defendant-appellant was the plaintiff. He sued the present plaintiffs- respondents to recover possession with mesne profits of the lands now in suit claiming that they were his own lands and the defendants were annual tenants. He relied on a rent-note of 1913. The tenants, present plaintiffs-respondents, contended that the rent-note was forged and denied that they were annual tenants and alleged that they were permanent tenants on a rental of ten maunds a year to the khot. The trial Court in that suit found that the landlord had proved that they wore annual tenants and was entitled to possession and decreed the landlord's claim. The tenants appealed and then gave an application to the effect that they had not been able to adduce all their evidence on the question of permanent tenancy and that they wished to leave that question open and to have it decided in it subsequent suit to be filed by them and subject to such permission they wore willing that the appeal should be dismissed. Upon this the learned Subordinate Judge in appeal, Mr. M.H. Vakil, passed the following order:--"The permission asked for is granted, The appeal is dismissed with costs."