DEBENDRA KUMAR DUTTA Vs. PRAMADA KANTA LAHIRY

JUDGEMENT

(1.) This appeal arises out of a suit for declaration of plaintiffs title to and recovery of possession of some plots of land on the allegation that the land in Schedule I which comprises four plots was held by the plaintiff as part of a permanent tenure under defendant 1 and that the land in Sch. 2 which comprises 2 dags was held as a Brohmottar in defendant l's zemindary. The defence was that the plaintiff had no title to the lands in suit and the lands appertained to the zemindari of defendant 1 and that the suit was also barred by res judicata, there having been two suits in the year 1913 being Suits Nos. 2503 and 2504 where it had been held that the plaintiff had no permanent tenure or Lakheraj as alleged now. The first Court gave a decree to the plaintiff. This decision on appeal was reversed by the lower appellate Court, the learned Subordinate Judge holding that the suit was barred by res judicata and also that the plaintiff had no title and had never been in possession of the lands at any time within twelve years of the suit. The plaintiff has appealed to this Court.

(2.) The first contention on behalf of the appellat before us was that the learned Subordinate Judge was wrong on the res judicata point. It was said that the plots of land in the litigation of 1913 were not the same as those in the present suit and that the Court that had tried the suits in 1913 had no jurisdiction to try the present suit and therefore was not a competent Court. It is true that the plots of land in the two-litigations are not the same, but in the previous suit one substantial point that arose and that was decided was whether the plaintiff had any permanent tenure or Lakheraj to which he alleged the plots in question in that litigation appertained and it is on the same allegation, namely, that the plots in question in the present suit appertained to the same permanent tenure or Lakheraj that the present suit for title and possession was instituted. In these circumstances it is immaterial for res judicata purpose that the plots of land in the present suit were not identical with the plots in the previous suit. Then as regards the other point in connection with the res judicata question it was said that the Court which decided the suit in 1913 had no jurisdiction to try the present suit, inasmuch as the value of the property in the present suit was over Rs. 1000 which was beyond the pecuniary jurisdiction of the Munsiff who heard the 1913 suits. Having regard to the words "competent to try the subsequent suit" as they are to be found in Section 11, Civil P. C, one would be inclined to think that this contention is not without some substance. But in more than one decision, among which I may mention Gopi Nath V/s. Bhugwat Pershad (1884) 10 Cal 697 there has been a judicial interpretation of the expression "competent to try the subsequent suit" as it is to be found in Section 11 and that interpretation is "competent to try the subsequent suit if brought at the time the first suit was brought." It is no doubt true that the lands in the present litigation have been valued at a figure more than Rs. 1,000. But the land in the previous litigation had been valued only at Rs. 550 and the learned Subordinate Judge found that the area of the lands in the previous suit was more than 3 aras whereas the area of the lands in the present suit is less than 3 aras and the quality of the lands in the two suits is not different.

(3.) The decision in the 1913 litigation therefore in my opinion did operate as res judicata in the present suit.