ALEK MAIMED BEPARI Vs. BACHHANI BIBI

JUDGEMENT

(1.) THIS appeal is preferred by the plaintiff against the decision of the learned District Judge of Rungpur, dated the 8th November 1916 affirming the decision of the Munsif at Gaibandha. The plaintiff sued to recover possession of a six-annas share of a holding on declaration of his title by purchase. The suit was dismissed in the lower Courts. The learned District Judge in the Court of Appeal below held that the plaintiff s case was barred by res judicata. - That is the only point raised in this appeal. The case is put in this way: The ancestor of the present plaintiff sued the present defendants to recover rent, The -present defendants denied the relationship of landlord and tenant. The case went to trial and an issue was settled on the point. The plaintiff s ancestor attempted to prove the relationship of landlord and tenant in two ways. First of all by admission of his title by the present defendants. That admission was stated to have been contained in certain Kabuliyats said to have been executed in favour of the ancestor of the plaintiff by the present defendants. The learned Judge of the lower Appellate Court found in that case that these documents were not genuine. As an alternative to that in the case of those Kabuliyats not being found to establish the relationship of landlord and tenant, the plaintiff gave in evidence certain Kobala s which he stated showed the transfer of a six-annas share of the holding to him and he asked that rent should be awarded to him on the footing that those Kobalas established his interest to six-annas as being a six-annas landlord. The learned Judge there again found that the Kobalas were tot proved. What the learned Judge adjudicated in both the matters is clear from the judgment of the lower Appellate Court in the former suit because the learned Judge there remarked "I am unable to hold that the plaintiff has proved his title to a six-annas share of the Jote or the execution of the Kabuliyats by the defendants father." As a matter of fact, he ought to have stated it the other way round. Then there would have been no doubt that the case clearly was one of res judicata. He stated in the first instance that the Kabuliyats had not been proved and that the plaintiffs title to the six annas share also had not been proved, However, there is no doubt what- in substance was decided, namely, that the plaintiff was not a landlord either on the basis of the Kabuliyats or on the basis of the Kobalaa, and those documents not having been proved in that suit cannot be set up against the defendants in the present suit. I agree with the conclusion arrived at by the learned Judge of the lower Appellate Court. The present appeal, therefore, fails and must be dismissed. The appellant must pay to the respondent his costs in this appeal. Walmsley, J.

(2.) I agree.