SHEIKH FAZIL Vs. HARI KISHORE CHAKRAVARTI

JUDGEMENT

(1.) This appeal arises out of a suit for ejectment.

(2.) The plaintiff brought a suit alleging that he was a raiyat and that the defendant was an under--raiyat upon whom he had served a notice under Section 49 of the Bengal Tenancy Act. The defence was that the defendant was an occupancy raiyat, that even if in fact he was an under-raiayt, he had by custom acquired a right of occupancy and that the notice was not valid or sufficient.

(3.) Before the present suit, there had been another suit by the same plaintiff against the same defendant for the same relief. In that suit, the learned Munsif found that no notice had been served. Issue No. 3 in that suit was, "Have the plaintiffs occupancy right to the land in suit and is the defendant an under-raiyat under the plaintiffs," and issue No. 4 was, "Has the defendant any right of occupancy to the lands in dispute and is he liable to be ejected? "With regard to these issues, the learned Munsif said, In view of my above findings, it is not necessary" that these issues should be decided; but as the case was appealable, he expressed his opinion upon these points that the defendant was an under-raiyat and had not made out the custom under which he claimed to have acquired a right of occupancy. The Courts below relied upon this judgment as operating to exclude a decision in this case of the same question by the principles of res judicata. The learned Munsif excluded evidence with regard to the status of the defendant and the learned Subordinate Judge affirmed the decision of the Munsif on that point.