DEB NATH MORAL Vs. SASHI BHUSAN MORAL

JUDGEMENT

(1.) The plaintiff in the suit out of which this appeal has arisen prayed for declaration of his title to the lands in suit as a person who had obtained settlement of the same as a tenant from the landlords, on the allegation that he was dispossessed by defendant 1 who had, as the purchaser of the lands in suit in execution of his mortgage decree against the tenant who had only non-transferable occupancy right in the lands?obtained possession of the same. The case of the plaintiff was that the lands in suit appertained to the non-transferable occupancy holding of one Bhagaban Moral. After Bhagaban's death the holding was abandoned by his widow Sita Sundari, and the lands comprised in the holding were settled with the plaintiff by the landlords on 12 Magh 1321 B.S.: the settlement so made by the landlords was evidenced by a kabuliyat executed on the date aforesaid, which contained a statement to the effect that the tenant having abandoned the holding, the landlords had the right to settle the lands. As indicated above defendant 1 claimed to be in possession of the lands as the purchaser at a sale in execution of his mortgage decree against Bhagaban Moral, the tenant. The tenant having no transferable right in him, defendant 1 was, according to the plaintiff, a mere trespasser. The claim, as made by the plaintiff in the suit, was resisted by defendant 1. The fact of abandonment as asserted by the plaintiff was denied by the defendant; the title of the plaintiff to the lands in suit by virtue of the kabuliyat of 1321 B.S. was also contested. It is to be noticed that the only contesting defendant in the suit was defendant 1, who, according to the plaintiff had no title in him, being the purchaser of a non-transferable occupancy holding The landlords who were made defendants in the suit, supported the plaintiff, a fact specifically noticed by the trial Court in its judgment.

(2.) The history of the litigation, appearing from the judgment of the Courts below, discloses a determined and persistent attempt on the part of defendant 1 to obtain possession of the lands in suit, although his title to the same as a purchaser in execution of his own mortgage decree was not effective. There were two suits brought by the defendant against the plaintiff, in both of which the decision of the Courts went against the plaintiff, on the ground that the tenant on the lands, Sita Sundari, had not abandoned the holding. The kabuliyat, under which the plaintiff claimed to be the tenant, was found to be ineffective, inasmuch as there was no abandonment by the tenant of the lands appertaining to the holding. It is worthy of notice in this connexion, that the landlords obtained decrees for rent against the plaintiff on the strength of the kabuliyat of 1321 B.S., and on one occasion the decretal amount had been deposited in Court by the plaintiff, and was withdrawn by the landlords. The questions that appear to have been raised on behalf of defendant 1 in the Court below were many and various. It was in the first place urged, as it has been urged before us, in support of the decision of the Court of appeal below, dismissing the plaintiff's suit, after reversing the decision of the trial Court, which passed a decree in favour of the plaintiff entitling him to recover khas possession of the lands in suit, by evicting the defendants therefrom, that the plaintiff's claim in suit was barred by the rule of res judicata.

(3.) In our judgment, there is no substance in the plea of res judicata as raised on behalf of the contesting defendant in the suit. Apart from the position that the previous suits of 1917 and 1924 were tried in the Munsif's Courts, the cause of action, and the fact of abandonment upon which the plaintiff's claim in the present suit instituted in the Subordinate Judge's Court, came into existence after the decision of the previous suits. The complete abandonment by Sita Sundari of the holding, dates from the decision in the suit of 1924; and the trial Court was, therefore, right in hold ing that the abandonment, upon which the present claim was founded, occurred, after the disposal of the previous suits. The argument in support of the appeal by the plaintiff to this Court, that the bar of res judicata did not apply to the plaintiff's claim in suit, must accordingly be accepted. The point arising for consideration next is whether there was abandonment of the holding by Sita Sundari. On the facts found by the Courts below, regard being had to the position that Sita Sundari's possession after execution of the mortgage decree by defendant 1 was permissive, the defendant having allowed her to possess the homestead, at her entreaty, it must be, on the authority of decisions of this Court, held as a matter of law that there was an abandonment of the holding: see in this connexion Jogesh Chandra V/s. Radha Gobinda Rai .