KUNJ BIHARI LAL Vs. GHANSHAM DAS

JUDGEMENT

(1.) The plaintiff, Kunj Behari Lal, purchased an 8 anna share of the Zemindari rights in Mauza Seontha on the 26th April 1915 from Chaudhri Bahadur Singh and brought this suit, under Section 164 of the Agra Tenancy Act, to recover his share of the profits for Rabi 1322, 1323 and 1324 F. from the Lambardar, Ghansham Das, the defendant. The amount claimed was Rs. 1,457-5 4, principal and interest. The only defence with which we are concerned was that the plaintiff had no right to sue for Rabi 1322 and Kharif 1323 F. This defense was based on the following facts. After the sale by Chaudhri Bahadur Singh to the plaintiff, the defendant paid to the plaintiff a sum of money alleged to be equivalent to his share of the profits for these two seasons. This payment was made out of Court. Thereafter, Chaudhri Bahadur Singh sued Ghansham Das, defendant, for the profits of these two seasons and got a decree. Ghansham Das brought a suit in the Civil Court against Kunj Behari Lal to recover Rs. 808-12 6, the amount he bad paid to Kunj Behari Lal as his share of the profits, Rs. 113-7-11, interest, and Rs. 154-12, costs incurred in defending Chaudhri Bahadur Singh s suit, and Rs. 100 "for damages and costs incurred", in all a sum of Rs. 1,177-0-5. In paragraph 6 of the plaint in that suit Ghansham Das stated that Kunj Behari Lal had not purchased the arrears of the profits and, therefore, was not entitled to the sum of Rs. 808-12 which was paid on the 7th February 1916. He stated his cause of action arose on that date and also on the 17th May 1917, the date on which Chaudhri Bahadur Singh s suit for profits was decreed. That suit was referred to arbitration and a decree was passed in accordance with the arbitrator s award for Rs. 950. In the present case the contention was, that the suit is barred by Section 11 of the Code of Civil Procedure and the principle of estoppel."

(2.) The Trial Court held that, under the sale-deed of the 26th April 1915, Kunj Behari Lal was entitled to all rents and profits which became due after that date, and that as Kunj Behari Lal was recorded in the khewat an a co-sharer in June 1915 he was prima facie entitled to the profits for both Rabi 1322 and Kharif 1323 F. The plea of res-judicata was disposed of in the following words: The suit, as appears from the file, was based on the allegations that Kunj Behari Lal and Ram Narain fraudulently persuaded Ghansham Das to pay about Rs. 805 on account of profits and that he was entitled to a refund. The question of profits was not in issue directly and could not have been so in a civil suit. The arbitration did not rightly enter into the question of plaintiff s right for profits of any part of any year. So that, on merits, that judgment does not operate as res judicata as the three notable ingredients are wanting. The Civil Court decree has only affected so much as to restore the status quo of the parties with regard to the profits of the village.

(3.) It eventually decreed the plaintiff s suit. The defendant appealed only against so much of the decree as referred to the two seasons above mentioned. The District Judge, after setting out the pleadings in the civil suit, said: