PT KALYAN DAS Vs. RSCHOBEY SUDERSHAN LAL

JUDGEMENT

(1.) This is a plaintiff's second appeal against a decision of the learned Additional District Judge of Agra, confirming a decree passed by an Assistant Collector of the first class dismissing the plaintiff's claim for ejectment of the defendant under Section 82, Agra Tenancy Act, 1926. The plaintiff-appellant brought a suit under that Act to eject the defendant alleging that the latter was his tenant who had, in contravention of the provisions of the Act, persistently sub-let his holding. The defendant denied that he was a tenant of the plaintiff and alleged that he was a proprietor of the land in dispute. He further pleaded that he was entitled to the benefit of Section 83, Agra Tenancy Act, 1926. The learned Assistant Collector held that the defendant had been sub-letting the land persistently and consequently that he was not entitled to the benefit of Section 83 of the Act. He remitted the issue of proprietorship to the Munsif of the district for determination. The learned Munsif having considered the matter decided that the defendant was the proprietor of the land in suit. The learned Assistant Collector accepted this finding and therefore was bound to hold that the plaintiff's claim to eject the defendant failed. Consequently the suit was dismissed. Against that decision the plaintiff appealed to the learned District Judge who held that the defendant was not a tenant but a proprietor and consequently dismissed the appeal.

(2.) The case was decided in favour of the defendant by both the lower Courts on the ground that the matter was res judicata because in previous litigation between the parties or their predecessors the defendant had been found to be not a tenant but a proprietor of the land in dispute. It appears that in the year 1918 Panna Lal, son of Daya Kishen, a predecessor-in-title of the plaintiff, brought a suit, No. 492, against the present defendant, for the recovery of arrears of rent, in respect of the disputed plot, in the Court of the Assistant Collector. This Assistant Collector was the Tahsildar of Agra and was an Assistant Collector not of the first class but of the second class. Under the Agra Tenancy Act, 1901, he had jurisdiction to hear this claim for rent and also to decide the question whether the defendant was a tenant or a proprietor of the land in dispute. The learned Assistant Collector found that the defendant was not a tenant but a proprietor of the land and therefore dismissed the suit. The plaintiff appealed first to the Collector and then to the District Judge, but in each case the finding of the trial Court was upheld and the appeals were dismissed. It is therefore clear that in this previous litigation, which commenced in 1918, it had been held that the present defendant was a proprietor of the land and not a tenant of the predecessor of the present plaintiff. There can be no doubt that there was one common issue in the suit of 1918 and in the suit which gives rise to this appeal. The former was a suit for rent, whilst the latter was a suit for ejectment, but in each case the defence was the same, viz., that the defendant was not liable because he was a proprietor of the land and not a tenant of the plaintiff. The question therefore arises whether the Court hearing the second suit was barred from considering the case afresh upon its merits. Both Courts have held that they were so barred.

(3.) It has been argued before me that the decision appealed against cannot be sustained because the decision of the Assistant Collector of the second class in the former suit could not possibly operate by way of res judicata to bar a decision upon the merits in the subsequent suit. Section 11, Civil P.C., provides that no Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties or between parties under whom they or any of them claim litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such Court. As I have stated previously, the main issue in both the suits was whether the defendant was a mere tenant or the actual proprietor of the land. In the previous litigation the plaintiff was a predecessor of the present plaintiff and the defendant was the present defendant. Therefore one of the matters in issue in the second suit had been directly and substantially in issue in the former suit which was a suit between the predecessors of the present plaintiff and the actual defendant in the subsequent suit litigating under the same title. However, that is not sufficient to create a bar by res judicata because it is expressly provided by this section that in order that a decision in a former suit may operate as res judicata in a subsequent suit, it is necessary that the Court which tried the former suit was a Court competent to try the subsequent suit. Mere competency to try the issue raised in the subsequent suit is not enough. As stated by their Lordships of the Privy Council in Gokul Mandar V/s. Pumanund Singh (1902) 29 Cal. 707: A decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised. In this respect the enactment goes beyond Section 13 of the previous Act (Act 10 of 1877) and also beyond the law laid down by the Judges in Duchess of Kingstone's case (1776) 2 Smith S.L.C. 10 Ed. 713.