RAJANI KANTA SAHA Vs. ARJUN CHANDRA CHAKRAVARTY

JUDGEMENT

(1.) The respondent as plaintiff instituted a suit against the appellants as defendants for ejecting the latter on declaration of his own title on the following allegations that the lands were purchased at a rent-sale by the landlords in execution of a decree for rent obtained by them against the one Bishun Charan Das and others and that the landlords took symbolical pos me session after such purchase and there or after leased the same out to the respondent but when the respondent went to take possession he was resisted by the as appellants who had no title. The appellants in their defence alleged that they had been in possession for many years as occupancy ryots under that tenure-holders and that the plaintiff himself had recognized them as such. This suit was dismissed. The judgments of the trial Court and of the t appellate Court in that suit are not very clear but it appears to have been held by the latter Court that though the recognition had not been proved the respondent or his lessor had never been in possession, and that the appellants had been in possession for over 12 years and so the suit was barred by limitation.

(2.) The respondent then instituted the present suit with the same prayer but this time alleging that the appellants were under-ryots and professing to have served notices on them under Section 49, Bengal Tenancy Act. The trial Court held, on a preliminary issue, that the suit was barred by res juaicata view of the earlier decision aforesaid. On appeal by the respondent the Sub-ordinate Judge had held that the suit is not so barred and has remanded the suit for trial on the other issues. Hence the present appeal.

(3.) The decision of the Subordinate Judge has been assailed upon two broad grounds, being the grounds on which the Munsiff rested his decision. They are first, that a prayer for declaration of title such as there was m the previous suit not having been granted should be deemed to have been refused under Expln. 5, Section 11 of the Code and so the present suit is barred and second the present suit is also barred because of the principle of constructive res jdicata as enunciated in Expln. 4 to that section.