LAXMIPATHAYA Vs. RAMACHENDRA

JUDGEMENT

(1.) The plaintiff as Moktesor of a temple sues to eject the 1st defendant. Among other pleas the defendant contended that he is a mulgeni tenant and is not liable to be ejected. He also denied that his defence was not barred by res judicata. To understand this last contention, it is necessary to state that the present plaintiff sued the present 1st defendant and others on a previous occasion to recover possession: The District Munsif and the District Judge held that the 1st defendant was only a chalgeni tenant and must surrender possession (O.S. No. 77 of 1903 and A.S. No. 274 of 1905). In Second Appeal (S.A. No. 155 of 1906), the High Court held that the notice determining the tenancy was insufficient and refused to decree possession. Hence the plea of res judicata.

(2.) The District Munsif in the present case has come to the conclusion that the 1st defendant was only a chalgeni tenant and gave a decree to the plaintiff. On appeal both on the merits and on the plea of res judicata, the District Judge has disagreed with the Court of First Instance.

(3.) In Second Appeal Mr. M.O. Parthasarathy Aiyangar contends that the decision in S.A. No. 155 of 1906 is res judicata against the 1st defendant, as the decision as to the sufficiency of the notice necessarily involves the finding that the tenant had no occupancy right and relies on Bayyan Naidu v. Suryanarayana (1912) I.L.R. 37 Mad. 70 : 23 M.L.J. 548 and Muthammal v. Secretary of State for India . After careful consideration, we are unable to agree with learned Counsel on this point. The plea of res judicata being one in restraint of the right of a litigant to have his case fully tried and determined, the judgment which is pleaded in bar of this right must be strictly construed. The judgment of the learned Judges of this Court in Second Appeal lends itself to two possible constructions: (a) that they accepted the finding that the defendant was holding only as a chalgeni tenant, but held that the notice to quit was insufficient or (b) that they assumed without deciding that the defendant had only the chalgeni tenure, but held that even on that assumption he was not liable to be evicted as there was no proper notice. 3. We think that the defendants are entitled to claim the latter alternative. This view is in accordance with the decision of the Calcutta High Court in Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee (1887) I.L.R. 13 Cal. p. 17 and Thakur Magundes v. Thakur Mahadeo Singh (1891) I.L.R. 18 Cal. p. 647. We therefore hold that the defendants are not barred by res judicata.