BENI MADHO Vs. MUNSHI INDAR SAHAI

JUDGEMENT

(1.) The question in this appeal is whether the suit of the plaintiff-respondent is barred by the rule of res judicata. The facts are these: On the 15 of November, 1899, a lease was granted by Indar Sahai, plaintiff, who is the zamindat of the village, to Ajudhia Prasad and Muthra Prasad, the pre-decessors-in-title of the appellants. The lessees alleging that they had been dispossessed brought a suit for recovery of possession and compensation and obtained a decree on the 25 of March 1903. They obtain-ed formal possession on the 4 of September 1903 but were again dispossessed and thereupon they brought another suit on the 4 of March 1904 for recovery of possession and compensation. This suit was decreed by the Court of first instance on the 30 of September 1904 and the decree was affirmed in appeal.

(2.) The possession was delivered on the 19 of November 1905. On the 4 of December 1905, the lessor brought the suit which has given rise to this appeal against the lessees for arrears of rent for the period from the 5 of March 1904 to the 19 of November 1905. On the 3 of January 1906, the lessees brought another suit for compensation for the same period that is, for the period sub- sequent to the date of the institution of the suit brought by them on the 4 of March 1904, to the date of delivery of possession, namely the 19 of November 1905. This suit was decreed by the Court of first instance on the 5 of June 1906. Indar Sahai appealed against this decree to the Commissioner but his appeal was finally dismissed. The Court of first instance dismissed the suit for arrears of rent brought by the lessor, holding that during the period for which rent was claimed the lessees were out of possession, This finding was in accordance with the result of the litigation which ended in the decree of the 30 of September 1904. From the decree passed in the suit brought by the lessor an appeal was preferred to the District Judge. The appeal prevailed and the suit of the plaintiff lessor was decreed. Upon second appeal to this Court the decision of the lower appellate Court was set aside and the case was remanded to that Court. After remand the learned Judge adhered to his original decision and decreed the claim of the lessor. From this decree the present appeal has been preferred.

(3.) It is contended that as before the decision of the appeal to the lower appellate Court in this case the decree in the suit brought by the lessees had become final, the matter in issue in this case has become res judicata-. in consequence of that decree. This contention is in our judgment well founded. The learned Judge overruled the plea of res judicata on the ground that the present suit had been instituted before the institution of the suit of the lessees in which they obtained a decree from the Court of first instance on the 5 of June 1906 and that, therefore, the finding in that suit cannot be deemed to be a finding in a former suit and the rule of res judicata does not apply.