BIDHUMUKHI DASI Vs. JITENDRA NATH ROY

JUDGEMENT

(1.) The subject-matter of the litigation which has culminated in the present appeal is an area of 344 bighas of land. The circumstances under which the plaintiff and defendants, respectively, claim the ownership of the disputed property, are of some complexity but when they are carefully analysed, the questions in controversy between the parties turn out to be fairly simple of solution.

(2.) For members of a family of Mitters, by name Bhagabati Charan, Ramdoyal, Dindoyal, and Chandra Kant, all descendants of one Jagannath, were the owners of two properties, one a kharija taluq which they held directly under the Government and which bore No. 697 (former No. 353) on the Revenue Rolls of the Collector of Jessore, and another a maurusi jama or hereditary tenure which they held under the predecessors of the first two defendants, who possessed a putni right in that property. For the sake of brevity, the first of these properties may be described as the taluk, and the second as the ganti. The Mitters were entitled to one- fifth share of three villages, namely, Gayalbari, Durbajuri and Kallora included in the former, and held two villages, Icharbahar and Gayalbari included in the latter. On the 3 February 1859, they executed a mortgage by way of conditional sale of these properties to one Iswar Chandra Bose, the father of the eighth defendant, who, admittedly entered into this transaction on behalf of his daughter. The mortgage-deed was not produced in the Court below, but by consent of parties has been received in evidence in this Court, and it appears from that document that there was no schedule of details of the lands comprised in the two properties given by way of mortgage. In 1862, the mortgagee commenced an action to foreclose the mortgagors and their representatives-in-interest, and to recover possession of the properties comprised in the security, He joined as parties to the suit the co-sharers of the mortgagors in the taluq, and also the zemindar and the putnidar under whom the ganti was held by the mortgagors. To this plaint was attached a schedule of boundaries of the numerous parcels of land included in the properties mortgaged, and they were classified as included in the taluq or in the ganti. On the 17 January 1866, a decree was made in favour of the mortgagee, and subsequently, on the basis of this foreclosure decree, the mortgagee obtained possession of all the properties. The result was that the right of the mortgagors to continue in possession terminated. It is clear, however, that they continued in possession, and on the 15 December 1868, Bhagabati Charan and the other mortgagors executed a qabuliat in favour of Iswar Chandra Bose, in respect of the lands comprised in the villages, Gayalbari and Kallora, at an annual rental of Rs. 534-13-0. Consequently, the position of the Mitters at the time was that of tenants under Iswar Chandra in respect of the lands comprised within the taluq. There is no evidence to show as to who was in possession of the lands of the ganti at this time, and it may be assumed that Iswar Chandra had possession of those lands. On the 27 January, 1892, the eighth defendant, the daughter of Iswar, as the person beneficially interested in the property acquired under the mortgage transaction, granted a maurasi lease to the husband of the present plaintiff in respect of her one-fifth share of the taluq, and thus demised her interest in the villages Gayalbari and Kallora. The lessee, Ram Lal Roy, is proved to have been the pleader of the family of the zemindars of Narail, of whom the eighth defendant was a member, and it has been suggested that this lease, which is the root of the title of the plaintiff, was granted to her husband on extremely favourable terms in recognition of his services as legal adviser. Ram Lal shortly after the grant of the lease in his favour, obtained a decree for rent against the Mitters due under the lease of 1868. This decree was executed, and on the 22nd August, 1895, Ram Lal purchased in execution the tenure created in favour of the Mitters in 1868. The plaintiff, as the representative in interest of her husband, claims to recover possession of the disputed area as comprised within the taluq, of which she has now a permanent lease granted by the document of 1892. The defendants, on the other hand, claim to retain possession of these lands as included within the ganti. The history of the devolution of the ganti interest has now to be narrated. As we have already stated, after the foreclosure decree of 1866, Iswar Chunder got into possession of the ganti. In 18V2, the father of the first two defendants, Gobinda Chandra Roy, who was the putnidar and the immediate landlord of the gantidar, commenced an action against Iswar Chunder for assessment of rent upon the allegation that he had encroached upon the adjoining lands of his landlord, and was thus in possession of a much larger area than that for which he paid the rent. In this litigation, Govinda Chunder claimed the lands now in dispute as included within his ganti, and asserted his right to have rent assessed thereupon. Iswar Chunder resisted the claim upon the allegation that the lands were outside the ganti, and comprised not within the putni of the superior landlord, but within the taluq, which he had acquired by virtue of the mortgage and held directly under the Government. The case was heard in the Court of first instance by a Munsif. The point in controversy between the parties was, whether the lands then in dispute which are identical with the lands now in controversy, were comprised within the taluq as alleged by Iswar Chunder, or within the ganti, as alleged by Gobinda Chunder. There was an elaborate enquiry, and the Court placed reliance upon a local investigation which had been made for the purposes of the mortgage suit of 1862. Iswar Chunder relied principally upon a thak map, to which much attention was not paid, because it was produced at a very late stage of the proceedings. The Court came to the conclusion that Gobinda Chunder had established by evidence that the disputed lands were situated in Gayalbari and were comprised in the ganti and that Iswar Chunder had failed to substantiate his allegation that they were comprised within the taluq. In this view, rent was assessed upon these lands, and a decree was made in favour of the then plaintiff on the 30 November 1875. Iswar Chunder then appealed to the District Judge, who affirmed the decision of the Court of first instance on the 28 November 1876, with an important variation, namely, that as both parties admitted that the excess lands must be incorporated with the original jama, he directed that the lands be so incorporated and the whole form one tenancy. Against this decision, an appeal was preferred by Iswar Chunder to this Court, but it was dismissed on the 4 April 1878. The result of this litigation, therefore, was that Gobinda Chunder successfully asserted his title to these lands as the landlord of the ganti, and the defence set up by Iswar Chunder that the lands were comprised in the taluq and bore no relation to the ganti, was overruled. Subsequently in 1878, Gobinda Chunder brought another action for rent against Iswar Chunder--on this occasion in the Court of the Subordinate Judge--for recovery of rent of a period subsequent to that in respect of which rent had been claimed in the previous suit, but on the basis of the enhancement decree in that litigation. There was no opposition, and the suit was decreed ex parte. As the decree was not amicably satisfied, Gobinda Chunder proceeded to enforce it, and on the 1 November, 1878, purchased the tenure in execution. The sale was confirmed on the 14 December, 1878, and possession was delivered to the decree-holder purchaser. On the 11 January 1.881, Gobinda Chunder granted a lease for a term of 5 years of the lands of the ganti purchased by him, to one of the Mitters by name Bhagabati Charan; but before the expiry of this lease on the 31 August, 1884, Gobinda Chunder granted a mourasi lease of the same lands to one Radhika Charan, who, it is admitted, took the lease for the benefit of the wives of the two Mitters, Bhagabati Churn and Chandra Kumar. The Mitters apparently continued in possession under this lease; but default was made in the payment of rent, with the result that Gobinda Chunder obtained a decree, took out execution, purchased the properties at a sale for arrears of rent on the 20 August, 1894, and subsequently obtained a sale certificate on the 31 October 1894. The case for the first two defendants, the representatives of Gobinda Chunder, is that the disputed lands are comprised in the ganti, and that they are entitled to retain possession thereof as holders of the tenure The substantial questions in controversy between the parties, therefore, reduce to two; first, what is the effect of the litigation of 1872, which was terminated by the decree of this Court in. 1878, as also of the litigation of 1878, which terminated in the purchase by Gobinda Chunder of the ganti held under him by Iswar Chunder; secondly, were the disputed lands as a matter of fact comprised originally in the taluq or in the ganti?

(3.) So far as the first of these questions is concerned, it has been argued by the learned Vakil for the appellant that the decision of the Munsif in the suit for assessment of rent brought by Gobinda Chunder in 1872 does not operate as res judicata, because the present suit is triable only by a Subordinate Judge. It has not been disputed by the learned Vakil for the respondents that the view put forward by the appellant is supported by the observation of their Lordships of the Judicial Committee in the case of Gokul Mandar V/s. Pudmanund Singh 29 C. 707 In this case, Lord Davey observed that under Section 13 of the Code of 1882 a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit, unless the Judge by whom it was made had jurisdiction to try and decide not only the particular matter in issue but also the subsequent suit itself in which the issue is subsequently raised. He further observed that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction. This view has been adopted by this Court in the case of Shibo Raut V/s. Baban Raut 35 C. 353; 7 C.L.J. 470; 12 C.W.N. 259. It may be assumed, therefore, that the decision in the suit of 1872, that the lands in dispute then, were included in the ganti and not in the taluq, does not operate by way of res judicata in the present litigation. This, however, is by no means conclusive upon the question in controversy between the parties. We must not overlook the subsequent litigation of 1878, in which Gobinda Chunder successfully asserted his claim to recover rent for all the lands determined as comprised within the ganti by the decree in the suit of 1872. Assume for a moment that it was open to Iswar Chunder to contest the claim in that litigation, to plead that the decision in the suit of 1872 was not res judicata, and to invite the Court to come to an independent determination of the question of the title of Gobinda Chunder to claim rent in respect of the disputed lands. Iswar Chunder, however, did nothing of the kind. He allowed the decree to be passed against him, which was subsequently enforced with the result that the decree-holder acquired the ganti by purchase at execution sale. Obviously, the representative of Iswar Chunder is barred by the doctrine of constructive res judicata, for, as was pointed out by this Court in the case of Shyama Charan Banerji V/s. Mrinmayi Debi 31 C. 79 if a defence might and ought to have been taken in a previous litigation but was not taken with the result that the suit was allowed to be decreed ex parte, the position of the defendant is the same as if he had raised the defence directly and substantially and had been defeated. In this view, it would follow that the question whether the disputed lands are comprised within the taluq or the ganti, cannot be re-agitated by the plaintiff in the present litigation.