JAI NARAIN LAL Vs. KASHILAL

JUDGEMENT

(1.) The decision of the Privy Council in Atma Ram V/s. Beni Prasad 1935 PC 186 has nothing whatever to do with this case. Their Lordships there decided that Beni Prasad had a right ex debito justitiae, and the Judge refusing the relief asked of him was failing to exercise his jurisdiction or acting with material irregularity. There is no question here that the plaintiffs had a right ex debito justitiae. On their own application they claimed to have a preliminary point decided by the Judge who has decided it against them. I should have felt very much inclined to hold, had it been possible to exercise my jurisdiction, in favour of the plaintiffs, because as far as I can see from what has been stated in this Court the matter was clearly res judicata. The former suit was an action by the respondents before me claiming that they had a three annas odd interest in a certain mahal, that the land, which the defendants-petitioners before me were in possession of, had fallen entirely within their patti, and consequently the plaintiffs were claiming rent as against the defendant-petitioners in that action. The action was dismissed as the Judge came to the conclusion that the case, that the land for which the plaintiffs were claiming ground-rent had fallen entirely within patti, was not made out and the action, as I have said, was dismissed.

(2.) Now, the plaintiffs brought another action and the action was clearly the same as it was on the former occasion. In this second action the claim was that the plaintiffs had a separate patti and the land was clearly within that patti: that the defendants were in possession. The plaintiffs therefore, claimed rent or, in the alternative, an assessment of fair rent. Incidentally it is necessary perhaps to point out that no Court in this Province or any other part of India, as far as I know, has any jurisdiction whatever to assess fair rent except in cases governed by the Bengal Tenancy Act. The land in suit is governed by the Transfer of Property Act and no Court has under the general law jurisdiction to make a contract between the parties. An assessment of fair rent is tantamount to making a contract between the parties, and any Court attempting to exercise such a jurisdiction would have jurisdiction only under statute, and in this case, as I have indicated, the statute does not apply. If the plaintiffs make out their title to the land, they are entitled to sue for use and occupation; but every time they go to the Court making such a claim they must prove the value of such use and occupation. The plaintiffs may succeed in this case or they may not. Even if they succeed, next time they make such a claim against the defendant-petitioners, it would be necessary for them to give such evidence as regards the value of the land as would enable a Court to grant such compensation for the period of time in suit.

(3.) In my judgment I have no jurisdiction to set aside the order of the learned Judge in the Court below as it was a matter of law which was entirely within the competence of the learned Judge to decide. But a clearer case on the principle of res judicata, on the facts as asserted in this case, I have never come across. With this observation I must dismiss the application, but in the circumstances of the case without costs.