SURENDRA NARAYAN MITRA Vs. DEJINDRA PROSAD MITRA

JUDGEMENT

(1.) This is an appeal from a decision of the learned District Judge of Jessore affirming the decision of the Subordinate Judge of the first Court there. The plaintiff brought the suit to recover mesne profits or damages in respect of certain lands of which he had been kept oat of possession by the defendants Nos. 1 to 56. The plaintiff in the year 1396 obtained a lease of about 600 bighas of land at an annual rent of Rs. 196 odd from the defendants Nos. 57 to 69. When the plaintiff attempted to take possession, he was resisted by the defendants Nos. 1 to 56. Then happened what has caused the difficulty in the present suit. In the year 1900, the defendants Nos. 57 to 60 instituted a suit to recover possession through the plaintiff of the lands together with mesne profits. The present plaintiff was the pro forma defendant to that suit. But it is quite clear that that suit ought to have been dismissed, because either the defendants Nos. 57 to 60 had a right to possess the lands in which case the decree ought to have been in their favour, or that there had been a right of possession in favour of the present plaintiff in which case the suit ought to have been dismissed. What happened was that the suit was decreed on the 11th July 1902, actual possession being delivered on the 23rd July 1909. In the course of the execution proceedings in that suit, mesne profits were assessed for three years down to the 11th July 1905, and now the plaintiff brings the present suit to recover mesne profits after that date. The learned Judges of the Courts below have dismissed the suit on the ground that it is barred by the rule of res judicata. It is quite clear that Section 11, Code of Civil Procedure, contemplates a case where a party derives title from a party to the previous litigation subsequent to the previous litigation. There is nothing in Section 11 to suggest that where the plaintiff has derived no title subsequent to the previous suit, the subsequent suit should involve the usual consequence of being dismissed. That is what has caused the difficulty in the present case because obviously the plaintiff in this suit does not claim through the defendants Nos. 57 to 60 subsequent to the date of the former suit.

(2.) Then the next point is that, at any rate, the present plaintiff was a formal party to the former suit and that a case of res judicata has arisen between the present plaintiff and the defendants Nos. 1 to 56 by reason thereof. But no issue was raised or tried between the present plaintiff and the defendants Nos. 1 to 56 in the former suit. It is quite clear, therefore, that the present claim is not barred by Section 11, Code of Civil Procedure.

(3.) The other point is that the plaintiff s suit is barred by Section 211 of the old Code of Civil Procedure, which corresponds with Order XX, Rule 12, of the new Code. But Order XX, Rule 12, does not contemplate anything except the relation between the plaintiff and the defendant in that suit. There is nothing in Order XX, Rule 12, to suggest that it applies between co- defendants. That being so, there is nothing to prevent the plaintiff in the present suit from recovering damages in respect of the period subsequent to the assessment of damages in the former suit. The present appeal must, therefore, be allowed with costs both here and in the Courts below and the case remitted to the Court of first instance for the purpose of deciding the other issues raised in the case and, if necessary, for assessing and determining the amount of damages payable to the plaintiff.