BARJORJI SHAPURJI Vs. SHRIPATPRASADJI VIHARILALJI ACHARYA

JUDGEMENT

(1.) The plaintiff in this case gave notice to the defendant to vacate the lands in suit in November 1920. According to that notice, he was required to give up the lands on March 31, 1921. The plaintiff claimed to be a mortgagee from the original Inamdars. The defendant was on the land as a tenant of the mortgagors. The defendant pleaded that ho was a permanent tenant; that the mortgagors were necessary parties; and that the plaintiff was neither entitled to possession nor to enhance the rent. The first issue raised was whether the plea that the defendant was a permanent tenant was res judicata in consequence of the finding in the previous litigation between the same parties in Suit No. 48 of 1915.

(2.) The trial Court came to the conclusion that the plea of permanent tenancy was not now open to the defendant as that question was hoard and finally decided in the previous suit between the same parties. The further question raised in the issues was whether it was not open to the mortgagee, contrary to the wishes of the mortgagor, to determine the tenancy of the defendant. That issue also was decided against the defendant. In the result a decree was passed against the defendant directing him to deliver possession of the plaint lands to the plaintiff, and to pay Rs. 306-9-0 for mesne profits prior to the date of the suit. This sum was arrived at on the basis of the annual profits having been determined at Rs. 225, out of which the defendant had already paid Us. 121-14-0 a year as rent to the plaintiff! The sum represented the difference between the full rent payable for three years and the amount paid at the old rate. There was also a decree for future mesne profits from the date of suit until delivery of possession, to bo determined under Order XX, Rule 12, Civil Procedure Code.

(3.) The defendant appealed to the District Court, and the same points were raised before the learned District Judge, who, on a consideration of the pleadings and the findings in the previous suit, came to the conclusion that the plea of permanent tenancy was not open to the defendant, as that question was heard and finally decided in the previous suit between the same parties. On the other points also he affirmed the view taken by the trial Court, with the result that the appeal was dismissed and the decree was confirmed.