GAJANAN AGARWALA Vs. HAMIDAR RAHMAN

JUDGEMENT

(1.) This appeal which is by the principal defendant arises out of a suit instituted by the plaintiff-respondent for declaration of his title (eight annas share) to two tin sheds standing on Dag No. 688 of the Cadastral Survey Map and also for confirmation of possession. The sheds are in the possession of a tenant, Sitaram Halui, who is pro forma defendant No. 11. The principal question involved in this appeal is a question of res judicata a question on which the two Courts: below have differed, the Court of first instance deciding that question in favour of the principal defendant, who had set up the plea, the lower Appellate Court against him.

(2.) The plaintiff had shares in tin sheds standing on two plots of land, which have now been recorded in, Dags Nos. 688 and 689 of the Cadastral Survey Map. In execution of a decree obtained against the plaintiff, as surety, the defendant's father Gouri Datta purchased the plaintiffs 1-3 share in some of the tin sheds, in January, 1908. The question involved in this suit is whether Gouri Dutta purchased the tin sheds standing on Dags Nos. 688 or on 689. The plaintiff says that he purchased the plaintiff's 1-3 share in the sheds standing on Dag No. 689. But the principal defendant maintains that he purchased the plaintiff's 1-3 share in the tin sheds standing on Dag No. 688. The lower Appellate Court has found as a fact that Gouri Dutta purchased a share of the sheds standing on Dag No. 689 and the plaintiff still has accordingly his share in the sheds now in dispute which according to its findings stand on Dag No. 688.

(3.) The point of res judicata arises in this manner. In the year 1929 the principal defendant as heir of his father Gouri Dutta instituted a suit (Money Suit No. 604 of 1929) to recover a third; share of the rent from Sitaram Halui. The suit was not a suit for rent of [agricultural lands] and so admittedly the provisions of the Bengal Tenancy Act did not apply to that suit. In the plaint he recited that his father had, purchased 1-3 share of the sheds and there was separate collection by him and his father. He stated in the plaint that the remaining shares belonged to the pro forma defendants. One of the pro forma defendants was the present plaintiff. He further stated that if separate collection be not proved he should be given a decree for his 1-3 share of the rent, as the remaining co-sharer landlords had been made parties to the suit. No relief was, however, prayed against any of the aforesaid pro forma defendants. The tin sheds in respect of which rent was claimed in that suit, are the sheds now in suit.