HALADHAR DAS TANTI Vs. NAGENDRA NATH MANDAL

JUDGEMENT

(1.) This is an appeal by the first defendant to recover possession of one anna share in a certain mauza and four annas share in certain, land We are told that the claim was to recover ejmali possession; but this is only true as regards the pro forma defendants and the real contest is between the defendant, the appellant and the plaintiff. The first Court decreed the suit in favour of the plaintiff and the Munsif's decree was confirmed on appeal by the District Judge and hence this appeal by the first defendant. The circumstances leading up to the claim are as follows:One Tara Chand Mahapatra was the proprietor of the mauza in respect of which the one anna share is claimed. He settled the mauza with Sitaram and Premchand each of them getting a one-half share. Sitaram subsequently sold eight annas of the mauza to Sonatan and one Chaudhury and Sonatan and Chaudhury sold these eight annas to Dinu, who is the father of the present plaintiff, and to one Kristo. On the 5 of August 1893 the heirs of Tara Chand sued Sonatan and Chaudhury for rent. Dinu and Kristo were not made parties in respect of the eight annas which they had acquired and the result was that only a money- decree was passed in favour of Tara Chand's heirs in that suit. One Jiban in execution of the decree purchased the property on the 9 September 1895. In fact by reason of the decree being a money decree no interest in the property was purchased by Jiban but apparently it was assumed that by virtue of his purchase he acquired an interest in the property. In the year 1897 Jiban released his interest in the properly to Kristo and to Dinu's wife, Dhani. In the year 1901 Dhani mortgaged her four annas share in the property released to her by Jiban to defendant No. 1. In the year 1914 the first defendant obtained a decree in a mortgage suit and on the 7 March 1916 in execution of his decree the first defendant purchased the mortgage property. In fact, for the reasons which I have stated he obtained no interest in the property. He obtained on the 9 July 1916 from the Court possession of the property which he had purported to purchase. It is not suggested that by virtue of the decree which Jiban purchased the property passed but what is said is that by reason of the doctrine of res judicata the plaintiff who is, as I have stated, a son of Dinu, is debarred from setting up his father's title to the property. Two matters are relied on in support of this; one is a decision in September 1916 in a criminal case but I do not think that anything turns on this or that this is really of any assistance to the defendant but the real matter on which the defendant relies is a decree passed in July 1904 in a contribution suit. In that suit Kristo claimed contribution from Dinu. Dhani was defendant No. 5 in that suit and in that suit as originally framed no relief was claimed against her--Kristo's case being that the property was Dinu s. It was further suggested that Dhani was a benamdar for Dinu. In that suit Dinu gave evidence and he state that his wife was not liable because she had previously paid the whole of some rent due in respect of the property. The Court decided against this contention and held that Dhani was liable for the contribution which Kristo claimed from Dinu. Now the real question that we have got to decide is whether this operates as res judicata so as to prevent the plaintiff who is Dinu's son from claiming the property against defendant No. 1 who was a mortgagee from the mother. There is no doubt that ordinarily the doctrine of res judicata does not operate as between co-defendants and that the Court applies the doctrine with considerable caution as between co-defendants but this doctrine has been applied as between co-defendants where there is a conflict of interest as between them where it is necessary for the Court to decide the conflict and where the judgment clearly decides the question as between those co-defendants. It is unfortunate that the pleadings in the suit are not exhibited in the case and we have not had the advantage of seeing them. We have, however, before us the judgment that was delivered in the contribution suit and also the decree which was passed in that suit and I think that it is impossible to say that there was not any conflict of interest in that suit as between Dinu, the husband and Dhani, the wife, that is to say, we think that there was a conflict as to which of them was liable to Kristo for the payment of the contribution which Kristo claimed in the suit. It is true that no issue was directly framed between the husband and the wife because the husband asserted that the property was his wife s, this clearly must have been the assertion that he made having regard to the fact that he contended that his wife had paid the previous rent and that she was not the benamdar for him. Then it seems to us that it was necessary for the purposes of the suit to decide this conflict of interest as between defendant No. 1 and defendant No. 5 for the whole question that arose in the suit was as to who was to be saddled with the contribution which Kristo claimed, that is to say, whether Dinu or Dhani was the person liable and having regard to the judgment which has been read to us and also the decree, I think that there can be no doubt that the Court arrived at a decision on the question of the liability for the rent and consequently, on the question as to who was the owner of the land at that time. This being so, I think that the appellant rightly contends that the proceedings in the contribution suit of 1914 make the matter res judicata as between himself and the plaintiff. For these reasons we think that the appeal must succeed with the result that the plaintiff's suit stands dismissed.

(2.) The appellant will be entitled to his costs in all Courts. Chakravarti J.

(3.) I agree and wish to add a few observations Immediately after Dinu and Kristo purchased the eight annas share of the holding the landlord brought a rent suit against the tenants in his books and obtained a decree for rent and put the property up to sale and it was purchased by Jiban. Kristo took a release of his four annas and the four annas of Dinu went to his wife Dhani. This transaction shows, at any rate the old tenant accepted the position, that the tenancy passed by the sale. This was in 1895. In 1901 Dhani mortgages her four annas share in the property to the defendant No. 1 and Dhani apparently continued in possession down to the date of sale and delivery of possession to defendant No. 1, i.e.,1916.