FAZILAT HUSSAIN Vs. RAMKHELAWAN KOERI

JUDGEMENT

(1.) Ramkhelawan Koeri in 1912 purchased a house in Sasaram from Bimal Teli by a deed, whereby Bimal Teli described himself as the proprietor of the house and land, by which the title in the house and in the milkiat was transferred to Ramkhelawan. In 1925 Sheikh Fazilat Hussain sued Ramkhelawan for arrears of rent claiming the sum of Rs. 28-6.6. It appears that the suit was at first instituted in the Small Cause Court, but this point is not clear. The suit was tried as a regular suit in which the defendant set up his title and the parties went to trial on the issues. Does the disputed house belong to the plaintiffs and is the defendant a tenant of the plaintiff? On this point the decision was in favour of the defendant; but the District Judge in dismissing the appeal pointed out that he was not deciding the question of title to the site on which the house stood. In 1929, Sheikh Fazilat Hussain sued Ramkhelawan in ejectment.

(2.) The Munsif of Sasaram, misunderstanding the plea of the defendant, thought that he had admitted the plaintiff's title to the site on which the house stood, and considering that this threw upon the defendant the burden of proving the transaction by which his vendor's ancestor had obtained title in the house, be decreed the plaintiff's suit on the ground that the defendant had failed to indicate how he had come into possession of this house standing on another man's land. On appeal, the learned Subordinate Judge pointed out that the defendant had never admitted the plaintiff's title to the land on which the house stood. The Subordinate Judge found that the plaintiff had failed to prove his title to this land; and he considered that on the question of the plaintiff's title to the house the matter should be regarded as res judicata, having been determined in the litigation of 1925. He therefore dismissed the suit. The plaintiff comes in second appeal from that decision.

(3.) The learned advocate for the appellants argues that the finding that the plaintiff had no right in the house in the suit of 1925, cannot be treated as res judicata, because the suit itself was merely a suit for arrears of rent and all that could be decided in that suit was whether rent was actually due as claimed by the plaintiff.