SM PRIOMBADA DEBI Vs. JOHURI LAL RAY

JUDGEMENT

(1.) There is only one point of decision placed before me in this appeal and it is whether or not the defence taken in the suit out of which this appeal arises, to the effect that the land claimed by the plaintiffs does not appertain to a holding purchased by him is barred as being res judicata. The question arises in this way. The plaintiff got an ex parte rent decree in Bent suit No. 1131 of 1933 against the defendant with respect to a jama bearing a rental of Rs. 5- 7-0 and in execution of that decree he put the holding to sale and purchased it. He went to take possession and the defendants prevented him from doing so with respect to two plots of land which the plaintiff asserts appertain to the holding purchased by him. On these allegations the suit is brought.

(2.) The defendants case is that these two plots do not appertain to the holding purchased and that they are the niskar land of the God Sridhar Jiu of whom they are the shebaits. The trial Court held that the land appertains to the holding purchased by the plaintiff and that the defendants are barred from asserting that they do not so appertain inasmuch as they should have raised this contention in Rent suit No. 1131 of 1933 instituted against them by the plaintiff and did not. On appeal the lower appellate Court has found that the land does not appertain to the holding purchased, that it belongs to the God Sridhar Jew and that the defendants are in possession of it as she-baits of the Thakur. It also finds that the defence taken is not barred as being res judicata. The plaintiff appeals. The finding of fact that the land does not appertain to the holding purchased by the plaintiff and that it is the land of the Thakur is not challenged. It is argued however that the defendants are bound by the ex parte rent decree from taking this defence.

(3.) The argument urged on behalf of the appellant may be summarized thus. In the rent suit the plaintiff was bound under Section 148, Ben. Ten. Act, to give in his plaint details of the plots which appertain to the tenancy and to give the number which the tenancy bore on the Record of Rights. In the plaint in the rent suit the tenancy was described as consisting of the two dags of the present suit together with other dags. The defendants did not appear to defend the suit and an ex parte decree was passed, The question whether these two plots appertained to the holding or not was a matter which might and ought to have been made a ground of defence in the rent suit and as it has not been so made, the defendants are precluded from now raising this defence. Reliance is placed on the provisions of Section 11, Expl. 4, Civil P.C.