MUHAMMAD MEHNDI ALI KHAN Vs. MUHAMMAD YASIN KHAN

JUDGEMENT

(1.) THE plaintiff in this suit is the talukhdar of Hasampur. The first three defendants were at the institution of the suit transferees of the mehal Sewar, part of the talukh, for the remainder of a term of 10 years. The other 44 defendants were entitled to sub-proprietary rights within the same mehal, subject to the transfer. The plaintiff is entitled to rent in respect of the entire mehal amounting to about Rs. 2,670 per annum. His suit is brought for arrears of rent which accrued while the term was running. The transferees have no defence to the suit. The other 44 defendants assert that they are not liable, and so it has been held first by the Deputy Commissioner and afterwards by the Court of the Judicial Commissioner. No one has appeared to oppose the talukhdar's appeal to Her Majesty in Council.

(2.) THE transfer was effected in the year 1881 by the Deputy Commissioner acting under powers given by the Oudh Rent Act of 1868, Section 125, and the Oudh Land Revenue Act of 1876, Section 121. It seems that for some years the under-proprietors had failed to pay rent, that the Deputy Commissioner had entered into management under the Rent Act without any beneficial result, and after a while had recourse to the powers given by the Revenue Act to transfer the shares of the defaulters to the three defendants, who were also defaulting shareholders, but were backed up by a mahajun, who found the requisite funds. From the date of the transfer the other co-sharers were no longer in legal possession, except that a certain quantity of nyjote or sir land was reserved to some of them at rents stated in the Deputy Commissioner's order.

(3.) THE Deputy Commissioner in this suit held that he ought to decide it on its own merits, and he held that, however the decree might work out in execution against the transferees, which it was premature to decide, the plaintiff could not have a decree against anybody else. The Judicial Commissioners took the view that the judgment of 1884, being made by a Court competent to decide the present case, is binding now, whereas that of 1885, being made by a Court not so competent, is not. Therefore they do not decide the suit on its merits. Without at all intimating that the Judicial Commissioners have erred, their Lordships doubt whether the judgment of 1884, which is the only evidence before them of that suit, sufficiently discloses what was really contested and decided there, so that they can confidently hold the present issue to be res judicata. In that judgment it appears that the plaintiff admitted the plea of the defendants consequently upon the admission of the three transferees that they were liable. It may possibly have been that the plaintiff was satisfied with the security of the transferees for the smaller amount then in dispute, and did not choose to contest the disputed point. It is safer to pass by this point without expressing any opinion upon it.