TARA CHAND Vs. GOBINDA CHANDRA MANDAL

JUDGEMENT

(1.) IN this case the plaintiff sued to recover rent for the years 1322 to 1325 at the rate of Rs. 66-5-6 a year. The defendant contested the suit denying the relationship of landlord and tenant and contending that the suit was barred by the principle of res judicata. The learned Munsif found that the relationship of landlord and tenant did not exist between the parties and that the suit was barred by the principle of res judicata. IN appeal the learned Subordinate Judge found on both points against the finding of the Munsif and decreed the appeal. On the case coming up before us, the main point argued is that of res judicata. The plaintiff's case is that he holds a ganti settlement from the Talukdar Purna Chandra Bose and the jama in question was originally held by the defendant directly under Purna Chandra Bose. Purna Chandra Bose brought a Suit (No. 259 of 1915) against the defendant in respect of a jama and that suit was dismissed. The defendant's case is that that suit acts as res judicata. The jama of the land in respect of which rent was then claimed is the same as in the present case and the case was decided on the merits. The plaintiff's case, however, is that the jama is not necessarily the same. IN the plaint in the former suit the rent claimed was Rs. 66-5-0 and now it is Rs. 66-5-6; and in the second place, as the first suit was not decided on the merits, it should be treated as one which has merely been dismissed for default. It appears that in the Suit No. 259 of 1915 a certain amount of evidence had been recorded on behalf of the plaintiff and defendant and the case adjourned on their application for further evidence on each side. On the next hearing day the plaintiff did not appear and the suit was determined in his absence. It is argued that such determination would only amount to dismissal and has the same value as the dismissal under Order 9, Rule 8. Now, as regards the first point, there is no doubt that the suit of 1915 referred to the same jama and to the same land as the present suit. No doubt, there was a mistake of two piece in the rental which was sought to be corrected, but such correction was refused. But we have compared the subject-matters of the two suits and it is obvious that they are, the same. As to the second point, the Munsif decided the base and wrote a judgment upon the merits. No appeal was preferred against that judgment and in our opinion, it cannot now be alleged that it has no worth because the decree in the suit was nothing more than a dismissal for default. The learned Munsif came to the finding that there was no relationship of landlord and tenant after recording the evidence of both sides on the subject. We must hold for the reason that the matter is res judicata.

(2.) THE result is that this appeal is allowed and the suit dismissed with costs in this-and the lower appellate Courts.