PRIYANATH CHAKRAVARTY Vs. KALICHARAN CHAKRAVARTY

JUDGEMENT

(1.) This appeal has arisen out of a suit for possession of certain lands on a declaration of the plaintiff's title there to and for mesne profits. The suit was dismissed in the Court of first instance on the ground of res judicata but was decreed in the lower appellate Court on the finding that the suit is not barred by the principle of res judicata and that the plaintiff's title to the disputed portion of the land in suit was established by adverse possession,

(2.) In this appeal it is urged that the suit is barred by the principle of res judicata. and that the learned Officiating Additional District Judge was wrong in holding that the suit is not so barred on the ground that the Munsif who tried the previous suit was not entitled to try the present suit. The present suit is valued at Rs. 2,100. This valuation includes Rs. 500 claimed as mesne profits the lands claimed being valued at Rs. 1,600.. Now it appears that half of the lands are claimed by inheritance from Uma Charan, grandson of Raj Narain; whereas the other half is claimed by inheritance from Sashi Bhusan, another grandson of Raj Narain and also by adverse possession as against his widow. There being different causes of action as regards these two halves of the lands in suit, in deciding whether the Munsif was entitled to try the present suit we have only to consider that portion which is claimed under the same causes of action, namely, inheritance from Sashi Bhusan and adverse possession as against his widow. A sum of Rs. 800 represents the value of the lands of this portion and this taken with a sum of Rs. 250 which represents the claim for mesne profits of these lands makes the value of the suit Rs. 1,050. But as regards two plots included within this land, namely, plots 148 and 842, the plaintiff's claim had already been the subject-matter of the previous suit and on the authority of Drupad Chandra Nashkar V/s. Bindumoyi Dasi A.I.R. 1926 Cal.l053 these plots should be excluded from the present suit, the previous suit as regards these two plots being between the same parties and the causes of action being the same. These two plots and another plot, namely plot 119 were valued in that suit at Rs. 100 and the value of plots 148 and 842 would be more than Rs. 50. Deducting the value of these plots from Rs. 1,050 the value of the land in suit would come to less than Rs. 1,000 and the suit would therefore come within the jurisdiction of the Munsif. In this view the Munsif who tried the previous suit might have also tried the subsequent suit and therefore the decision of the previous suit was res judicata as regards the present suit.

(3.) The case of Shibo Kant V/s. Baban Kant [1908] 35 Cal. 353 on which the lower appellate Court relies in holding that the two plots should not be excluded from the present suit is distinguishable inasmuch as that suit was held, not on valuation but on other grounds, to be beyond the Munsif's jurisdiction, and there the plaintiff in the second suit was a defendant in the first suit while in this case the plaintiff in both suits was the same person. In that case also the decision that the land should not be excluded was made under peculiar circumstances: the learned Judge states that he might have omitted the land which was the subject-matter of action before the Munsif and it might be argued that it was not land that the plaintiff was entitled to claim. But this argument was not of sufficient force to induce him to extend the principles of the decision in Bhugwanpati V/s. H. Forbes [1901] 28 Cal. 78 to a ease the facts of which differed so essentially. I think therefore that the lower appellate Court was wrong in not accepting the decision of the case reported in Drupad Chandra V/s. Bindumoyi Dasi A.I.R. 1926 Cal.l053 and in not excluding those plots in the calculation of the value of the present suit. In the previous suit it was decide 1 that Debnath defendant 9 is a first cousin of Sashi Bhusan and the owner of the two annas share which the plaintiff has claimed by inheritance from Sashi Bhusan. The contesting defendant 4 claims by purchase from Debnath.