GADADHAR BOSE Vs. RADHA CHARAN PODDAR

JUDGEMENT

(1.) The real question in this suit is a question of boundaries. The question was whether the land in dispute appertained to the plaintiff's mehal or to the defendants jaigir taluk. The learned Subordinate Judge dismissed the suit, and the District Judge has decreed it. The question of boundaries is generally a question of fact. But it is urged for the appellants, the defendants who have appealed, that in arriving at his conclusion, the learned Judge has fallen into certain errors of law If they can establish that, there may be grounds for setting aside the decree.

(2.) It appears that there was a decree in a previous suit, No. 90 of 1865 of the Munsif of Naraingunge, in which it is said that a certain thak map, to which I shall have occasion to refer more minutely in a moment, was directed to be amended, I ought to have stated that the plaintiff is an auction purchaser at a sale for arrears of revenue of taluk No. 6047 held on the 26 of March 1901, and the object of the suit is to recover possession of the land which he so purchased. The respondents contend that that decree is not binding upon the plaintiff. He was no party to the suit nor was his predecessor in title a party to the suit. No doubt, the defaulting proprietor, who failed to pay the revenue, was a party to the suit: but the plaintiff" does not claim title through him but claims under a paramount title. The contention of the appellants is that that decree must be treated as res judicata against the plaintiff, but I do not think that argument can properly prevail; neither the plaintiff nor his predecessor in title was a party to that suit: it cannot therefore constitute res judicata as against the plaintiff.

(3.) If authority be required, I may refer to Moonshee Buslool Rahman V/s. Pran Dhun Dutl (1867) 8 W.R. 222 and Radha Gobind Koer V/s. Rakhal Has Mukherji (1885) I.L.R. 12 Calc. 82, 90. Those cases are authorities for the proposition that the decree in the previous suit is not binding upon the plaintiff. The case in 8 Weekly Reporter has stood the test of forty years, and that in 12 Calcutta of twenty years. No doubt there is an obiter dictum in the case of Boykunt Nath Chatterjee V/s. Amecroonissa Khatoon (1865) 2 W.R. 191 and in the case of Tara Pershad Mitter V/s. Ram Nursingh Mitter (1870) 14 W.R. 288 which may be taken as supporting a contrary view; but it is worthy of comment that one of the learned Judges who was a party to the decision in 14 W.R. p. 283 was a party to the previous decision in 8 Weekly Reporter 222. For these reasons, the earlier decree is not binding upon the plaintiff.