PARBATI DEBI Vs. MATHURA NATH BANERJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff whose suit for enhancement Of rent has been dismissed by both the Courts of first instance and the lower Appellate Court. The facts are that the plaintiff and the defendants are howladars, the plaintiff having six annas of the howla and the defendants ten annas. The defendants took the undivided six annas of the howla from the plaintiff as his tenants and this in respect of this undivided six annas of the howla that the plaintiff seeks to obtain an enhancement of rent. The Munsif and the learned Judge of the lower Appellate Court held that the plaintiff was not in respect of this undivided six annas the landlord of a holding held at a money rent, by am occupancy raiyat within the terms of Section 30 of the Bengal, Tenancy Act and oh that ground, amongst others, dismissed the suit of the plaintiff.

(2.) Now, on behalf of the appellant it is contended, first, that this issue has been previously determined in favour of the plaintiff and that therefore under the rule of res judicata the Court was not entitled to dismiss his suit on this ground; and, secondly, it is argued that the plaintiff was the landlord of a holding within the terms of Section 30 of the Bengal Tenancy Act.

(3.) Now with regard to the first question, a suit was previously brought, and it was held that in that suit the landlord was entitled to bring his action; but the suit was dismissed on the ground that the rent which it was sought to enhance was not lower than that of the surrounding lands. Therefore, judgment was given in favour of the defendants, although the defendants objection to the competency of the suit was in fact overruled. In my opinion, the rule of res judicata does not apply to such cases. The judgment was passed in favour of the defendants and it was not open to them to appeal against the view of the Munsif who overruled the contention urged by them. If we were to hold that the rule of res judicata applied it would come to this that the defendants were bound by the decision of the first Court and were debarred, from appealing against the view expressed against them because the decision was in their favour --the principal point which the Court decided against them not being a ground on which the suit was decided because the suit was decided in their favour. The defendants were, therefore, debarred from questioning the soundness of the decision. The rule of res judicata cannot, therefore, be applied to this case.