NANJI KOER Vs. UMATUL BATUL

JUDGEMENT

(1.) This is an appeal on behalf of the first defendant in an action commenced by the plaintiff- respondent for declaration that she was the tenant of the disputed land, not under the appellant, but under the second defendant. It appears that in 1906 the first defendant sued the plaintiff for recovery of rent of the disputed property. The plaintiff resisted the claim on the ground that she held the land as tenant not under the plaintiff but under the second defendant in the present litigation. That defence failed on the merits, and the Court found that the relationship of landlord and tenant was proved to have existed between the parties to that suit. The result was that a decree for rent was made in favour of the present first defendant. On the 5th October 1907, the plaintiff commenced this action and she joined as parties defendants, the first defendant, the successful plaintiff in the previous litigation, and the second defendant who was alleged by her to be her landlord. There was also a third defendant added to the suit, namely, the transferor of the first defendant. But we are not concerned with the third defendant at all because, so far as we can judge, no relief has been claimed as against him. The appellant defended the suit on the ground that it was not maintainable and that the question raised res judicata. The Court of first instance gave effect to this contention and dismissed the suit upon appeal; the learned Subordinate Judge has reversed that decision.

(2.) The first defendant has now appealed to this Court and on her behalf, the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first that the suit is in its essence an inter-pleader suit and is not maintainable, and secondly, that even if it be conceded that the suit as framed is maintainable the substantial question in controversy between the parties is res judicata and cannot be re-investigated in the present litigation. In our opinion, these contentions are well founded and must prevail.

(3.) In support of the first contention, it has been argued that the plain object of the plaintiff is to have it established that not the first defendant but the second defendant is her landlord in respect of the disputed land. In other words, the plaintiff has instituted this suit to have the controversy between these two defendants finally determined. The suit, therefore, is clearly in the nature of an interpleader suit and consequently not maintainable, in view of the decision of this Court in the cases of Roylash Chondra Dutt v. Golak Chunder Poddar 2 C.W.N. 61 and K.S. Bonnerjee v. Rajchandra Dutt 5 Ind. Cas. 577 : 14 C.W.N. 784 : 37 C. 552 : 11 C.L.J. 577 See also Maclean on Interpleader, page 24. The learned Pleader for the respondent, however, has contended that the real object of the suit is to obtain a declaration that the first defendant is not the landlord of the plaintiff, and that consequently the suit is one for declaration within the meaning of Section 42 of the Specific Relief Act. We are not prepared to accept this contention as well founded. But, even if the suit be taken to have been instituted under Section 42, it is fairly clear that it is open to two fatal objections. In the first place, we are not satisfied that a suit of this character is maintainable under Section 42 of the Specific Relief Act. That Section provides that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may, in its discretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. Now, the legal character which the plaintiff claims in the present litigation is that of a tenant in respect of the disputed land. The first defendant is not interested to deny that she is such a tenant. In fact, the case of the defendant is that she is a tenant and has been rightly made liable for rent. Consequently, if the suit be treated as one under Section 42 it is clearly one not within the scope of the provisions of the law. In the second place, the suit, even if framed as one for a declaratory decree, is barred under the proviso to Section 42 which lays down that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. If the contention of the plaintiff is well, founded she would be entitled to an injunction to restrain the first defendant from executing the decree she has obtained. Consequently, a suit for a declaratory decree, pure and simple, would not be maintainable. The learned Vakil for the plaintiff-respondent, however, has farther contended that the suit cannot be treated as an inter pleader suit, because his client does not profess to espouse the cause of the first defendant. She espouses the cause of the second defendant and is confident that the first defendant has improperly obtained a decree for rent against her. On this ground he urges that the plaint ought not to be treated as a plaint in an interpleader suit because the essence of a suit of that description is that the plaintiff professes to be in the position of a stakeholder and merely invites the Court to determine the controversy between the contesting defendants. We are of opinion that there is no substance in this contention. In order to determine the nature of the suit, we must examine its true scope and there can be no room for controversy that the real object of the plaintiff, which is manifest on the face of the plaint, is to have it determined as between the first and the second defendants that the one is not but the other is her landlord. We are of opinion that the suit as framed is not maintainable.