RAJANI KUMAR MITRA Vs. AJMADDIN BHUIYA

JUDGEMENT

(1.) This is an appeal by the defendants in a suit by the plaintiff for declaration of title and confirmation of possession on the ground that he has an occupancy raiyati right in the two jamas mentioned in the schedules ha and kha of the plaint and is not liable to be evicted therefrom. The facts which have led up to this suit are that a suit was brought in 1909 by the defendants for ejectment of the plaintiff from the lands in this suit alleging him to be an under-raiyat and that suit was dismissed. In 1918 the defendants brought a suit against the plaintiff under Section 66, Ben. Ten. Act, alleging that the plaintiff was his korfa tenant, for arrears of rent and in default of payment for ejectment. That suit was decreed ex parte but the plaintiff in this suit appeared at a later stage and deposited a portion of the decretal amount. It appears that he did not deposit the entire amount and, therefore, the defendant took out execution of the decree and obtained formal delivery of possession through Court. The tenant not having vacated the land the defendants brought a suit in 1921 for recovery of possession. This suit was decreed after contest up to the appellate Court. That decree was for khas possession of the lands with mesne profits against the plaintiff. Thereafter in 1924 the plaintiff instituted this suit for declaration of his occupancy right in the land and for confirmation of possession. The trial Court dismissed the plaintiff's suit in respect of schedule ha and decreed the suit in respect of schedule kha.

(2.) The plaintiff appealed and the learned Subordinate Judge in the appellate Court decreed the suit in respect of both these plots. The defendants have appealed before us but they have confined their appeal only to plot ka. The point taken in appeal is that the lower appellate Court was wrong in not giving effect to the decree passed in their favour in 1918 and 1921. The learned Subordinate Judge holds that the decree passed in 1909 in which the plaintiff was held to be an occupancy raiyat should operate as res judicata and accordingly the subsequent decrees in 1918 and 1921 must be treated as without jurisdiction and nullities. This view is clearly wrong. The plaintiff should have pleaded that the decree of 1909 had operated as res judicata in the suit in 1918. But he omitted to do so; and the result was that the Court passed a decree holding that the plaintiff was an under-raiyat, for that is the effect of the decree which was passed under Section 66, Ben. Ten. Act. In the suit of 1921 which was based upon the suit of 1918 the plaintiff again failed to bring to the notice of the Court the decree of 1909 with the result that the defendant's suit for khas possession and mesne profits was decreed against the plaintiff. The present suit on the face of the decree passed in 1921 is incompetent. Instead of taking the defence which the plaintiff now pleads in his plaint he brings another suit for the purpose of agitating the matters which were involved in the suits of 1918 and 1921. There is no procedure in law which entitles him to do it. The plaintiff cannot be permitted to attack a decree passed by a Court of competent jurisdiction not vitiated by fraud or inoperative in a subsequent suit. The only mode of assailing a decree by a separate suit is to attack it on the ground of fraud for which period of limitation is prescribed in the Limitation Act. On the general law, therefore, the plaintiff is precluded from maintaining this suit. Also on the rule of estoppel by judgment the plaintiff is not entitled to the relief he claims.

(3.) The position at the worst in this case is that there are two conflicting decrees. By one decree the plaintiff's right as occupancy raiyat was established. By another decree that right was negatived. The point that arises in these circumstances is as to which decree should prevail. The trend of authorities is that the last decree ought to prevail. If finality is not given to the last decree there would be no end of the litigation which it is the object of Section 11, Civil P.C., to secure. The defendants in this suit may again bring a suit and base their claim on the decree of 1918 or 1921. If in such a suit the plaintiff can put far ward the decree in this suit operating as res judicata in that it is the last decree between the parties, why should not the same ground be available to the defendants in the present suit ? As has been observed by the learned Judges of the Madras High Court in Seshayya V/s. Venhatadri Appa Row the effect of not pleading the previous decree in answer to the plaintiff's claim in a suit stands on the same footing as if the defence was raised by the defendant and disallowed by the Court. It cannot be placed on a higher footing on any reasoning based upon common sense or law. The bar of res judicata is one which does not affect the jurisdiction of the Court but is a plea in bar which a party is at liberty to waive. If a party does not put forward his plea of res judicata in a suit he must be taken to have waived it or it must be taken to be a matter which ought to have been made a ground of attack and deemed to have been a matter directly and substantially in issue in the suit under Expl. (4), Section 11, Civil P.C. The party omitting to plead res judicata intentionally invites the Court to decide the case on the merits and having failed to secure a decision in his favour he should not be allowed to go behind the last adjudication and ask for the trial of an issue which he could have raised at the previous trial.