LAWS(PVC)-1941-1-100

PANCHANAN GHOSH Vs. KUMAR SARAT KUMAR ROY

Decided On January 31, 1941
PANCHANAN GHOSH Appellant
V/S
KUMAR SARAT KUMAR ROY Respondents

JUDGEMENT

(1.) This is an appeal by the plaintiff in a suit for declaration that the principal defendants have no title to kha schedule land in suit and that the plaintiff does not hold any tenancy of Rs. 17- 1-0 in respect of that land under the principal defendants, but that the said land belongs to the pro forma defendants and appertains to plaintiff's tenancy of Rs. 20-6-6 under the said pro forma defendants. The principal defendants brought Bent Suit No. 750 of 1934 against the plaintiff claiming rent for the kha schedule land as appertaining to a jama of Rs. 17-1-0 under them. The defence taken by the present plaintiff in that rent suit was that he was not the tenant under them but held the land under the present pro forma defendants as appertaining to a tenancy of Rs. 20-6-6. This defence was found against the present plaintiff and the suit was decreed on contest. In respect of this decree the plaintiff in the present suit seeks for a declaration that the same is base-(less and fraudulent and prays for a permanent injunction restraining the principal defendants from executing the said decree.

(2.) The trial Court dismissed the suit holding that it was not maintainable under Order 35, Rule 5, Civil P.C., being an inter pleader suit. On appeal the learned Subordinate Judge set aside this decision holding that the suit was not an inter pleader suit and remanded it for trial on the merits. After remand the trial Court raised and tried inter alia the following issues: (a) Does the land in suit belong to the principal defendant or to the pro forma defendants (Issue 5)? (b) Is the suit barred by res judicata (Issue 3)? (c) Is the decree in R. S. No. 750/34 fraudulent and inoperative (Issue 6)? (d) Is the plaintiff entitled to perpetual injunction (Issue 7)?

(3.) As regards issues 6 and 7 the Court found that there was no ground for holding that the contested decree was a fraudulent and inoperative one and refused to grant any injunction restraining the defendants from executing the decree. As regards (a), (issue 5), the trial Court held that this issue of title between the principal and the pro forma defendants cannot be raised or decided in this suit by the tenant. He observed: The pro forma defendants do not appear during trial to adduce any evidence on the point. The principal defendants do not accordingly adduce any evidence of title in this suit. They have got their contested decree against the plaintiff, by which -their right as against the latter was established. That decision is binding against the plaintiff and he cannot obtain a negative declaration that kha land does not appertain to any jama of Rs. 17-1-0 under defendants 1 and 2. This issue is thus disposed of without entering into the dispute between the principal and the pro forma defendants regarding the question of title.