SM TARITBARANI DASI Vs. BASUMATI DEVI

JUDGEMENT

(1.) The only question which has been urged on behalf of the appellant in this appeal is whether the decision of an earlier suit operated as res judicata in respect of some of the issues which arose in the subsequent suit, out of which the present appeal arises.

(2.) The plaintiff Basumati Debi instituted the present suit against Taritbarani Debi the defendant No. 1 and her husband the defendant No. 2, seeking to eject them from a plot of land and for a decree for mesna profits, and in the alternative for a decree for rent in case it was found that she was not entitled to eject them.

(3.) Taritbarani had instituted a suit for a deolaration of her right of way as a prescriptive right or an easement of necessity against one Chedi Dosadh a tenant under Basumati and also two persons as pro forma defendants of whom Basumati was one being the defendant No. 3 in that suit. In that suit no relief was claimed against her. She, however, contested the suit and amongst other things, contended that Taribbarani was her tenant and so could not claim a prescriptive right against her. The Court of first instance held that Taritbarani's claim was barred by limitation and she had not acquired any right of easement and in that view dismissed her suit but held further that Basumati failed to prove that Taritbarani was her tenant. Taritbarani appealed against the deoree and Basumati preferred a cross appeal against the finding declaring her liability to prove that Taritbarani was her tenant. The appellate Court allowed the appeal of Taritbarani and remanded the suit to the Courb of first instance for determination of certain questions which, in the opinion of the appellate Court, arose in the case. Basumati preferred a second appeal to this Court and this Court set aside the order of remand and remitted the appeal to the lower Appellate Court to be dealt with in accordance with certain observations made in its judgment. This Court in setting aside the order of remand expressly left untouched the finding that Basumati had failed to prove that Taritbarani was her tenant.