MOHIM CHANDRA SARKAR Vs. ANIL BANDHU ADHICARY

JUDGEMENT

(1.) The suit out of which this appeal arises related to a piece of land about 10 cottahs in area within the town of Pabna. This land was leased by the landlord to the predecessor in interest of the defendant by a kabuliat, dated the 29 Magh 1291. The defendant, in which term we include his predecessor in interest, allowed the father of the plaintiff to live on the land, the latter agreeing to work for the defendant as Muktear in the criminal courts and to pay the rent due to the superior landlord. While the father of the plaintiff was in possession of the land under this license he obtained a lease of it from the superior landlord. It is not disputed that the rights conferred by this lease were intermediate between the rights of the superior landlord and those of the defendant, and if the interest of the defendant was that of a tenant- at-will, the father of the plaintiff, after acquiring the second lease, had power to eject him. After the father of the plaintiff died two suits were brought by the defendant against the present plaintiff for ejectment. To the first one we need not further refer. The second one was defended by the plaintiff but was ultimately decreed and it was ordered that the present defendant was entitled to Khas Possession. After that the present suit was brought. The plaintiff gave the defendant notice of the determination of his lease, apparently under Section 111 of the Transfer of Property Act, and after the period of notice had expired he brought this suit for a declaration that the rights of the defendant had terminated. He dated his cause of action from the decree which the defendant had obtained against him and he asked also for an injunction restraining the defendant from executing that decree. The lower appellate Court has decreed the suit and the defendant appeals.

(2.) A number of points have been taken in argument which we will deal with seriatim. The first point is that the suit is barred by Section 13 of the former Civil P. C.. It appears that in the former suit between the parties the present plaintiff pleaded his title under the lease in his father's favour, and also that he had terminated the defendant's tenancy by a notice, the period of which had expired before the institution of the suit. The judgment in that case has been printed and it is perfectly clear from it that this plea was never considered. The question, therefore, whether the plaintiff's title is good and whether the defendant's title has been terminated by the notice served upon him by the plaintiff can not be said to have been heard and finally decided in specific terms in the former suit.

(3.) Reliance, however, is placed on explanation II of Section 13 of the Code which lays down that a matter which ought to have been a ground of defence in the former suit must be deemed to have been directly and substantially in issue. It is clear that if this explanation applies the fact that there was no final decision of the point in specific terms is not fatal to the plea of res-judicata. A matter which ought to be raised, but which as a matter of fact, is not raised in a suit cannot be decided in specific terms in that suit. But this fact cannot be fatal to the plea of res-judicata, for in that case it is obvious that explanation II would be meaningless. We must take it, therefore, that if the effect of the decision in a former suit is necessarily inconsistent with the de-fence that ought to have been raised but has not been raised that defence must under Section 13 be deemed to have been finally decided against the person who ought to have raised it. But these considerations do not appear to apply to the circumstances of the present case. The former suit was decreed it is clear that if the plea which the plaintiff then put forward, namely, that he was entitled to the land and that he had terminated the defendant's interest by due notice, is regarded as having been finally decided at all it must be deemed to have been decided against him. The result of the decision was that for some reason or other the notice which was given before the institution of the former suit was ineffectual and the present plaintiff was not entitled to retain his possession of the land in suit in that case by reason of the fact that he had given to the present defendant a valid notice for the termination of the lease. That being so, how can this decision be regarded as res- judicata in the present case which is brought on the allegation that the plaintiff has given a second notice to the defendant which has been found by the Courts below to be valid in law. The plaintiff's case, as it has been laid before us now, is that for some reason or other service of notice in the former case was not effectual. This may have been due to the fact that it was given by a benamidar or for some other reason. We have no materials before us to show why it was unsuccessful, but if the decision, of the Court in the former suit is regarded as constructively deciding the point it must be regarded as deciding it against the present plaintiff, that is to say, that the notice was ineffectual. If the point had been decided the other way it is clear that the former suit would have been dismissed. This being so the plea of res- judicata must necessarily fail.