NAKUL CHANDRA BARUA Vs. SASTI CHARAN BISWAS

JUDGEMENT

(1.) I do not decide this appeal as a question of res judicata for it may be said that the auction-purchaser was not a party to the previous litigation nor did he claim under the ex proprietor within the meaning of Section 11 of the Code of Civil Procedure. The purchaser is not bound by the act of the ex-proprietor, He gets the estate as it stood at the time of the Permanent Settlement. But the position here is this. The matter would have been res judicata if the question had arisen between the ex-proprietor and the tenants and in such case the latter would be bound to pay the rent previously adjudicated, and it is open to the purchaser, if he wishes, to accept the previous decision as binding on himself and the advantage of it. If he does so, it seems to me that the tenant cannot object. The purchaser is certainly not in any worse position than the ex-proprietor and may elect to take advantage of the decree obtained by the latter. If this were not so, then at each and every sale all previous litigations might be re opened and the purchaser in such a case might be worse off than the ex proprietor from whom he had purchased. I do not decide here what would be the effect if the purchaser had not accepted the previous decision. No doubt mutuality is a test of res judicata, but this is not a question of res judicata as between the purchaser and the tenant, but it is a case in which the tenant would have been bound towards his previous landlord and in which the purchaser at the revenue sale has elected to succeed to the right in this respect of the ex-proprietor. The rights of the tenants are in no way enlarged by the revenue sale.

(2.) In my opinion, therefore, there is no ground for reversing the decision of this Court and the appeal must be dismissed with costs. Chatterjee, J.

(3.) I agree.