MUKTAKESHI DASI Vs. MANILAL JANA

JUDGEMENT

(1.) The facts leading to this litigation are that the plaintiff brought a suit against the defendants in 1916 for rent in respect of several plots, including plot 5, which is involved in the present suit. The defendants in that suit admitted their liability for rent, but averred that they held plot 5 not under the plaintiff but under a third party, the Satkhira Babus. That suit for rent was decreed. But the defendants plea that plot 5 did not form part of the holding under the plaintiff prevailed. That judgment was pronounced in 1918. In 1923 the present suit was brought by the plaintiff for declaration of his title to and recovery of possession of the land, which was plot 5 in the rent suit. Subsequently, the plaintiff gave up his claim for khas possession, but asked the Court, under Section 157, Ben. Ten. Act, to settle fair and equitable rent in respect of it. The trial Court dismissed the plaintiff's suit on the question of title, holding that the plaintiff had failed to prove that plot 5 was included within his tenure. Upon appeal, the learned Additional District Judge held, on an examination of the evidence, that the plaintiff had succeeded in proving that the land in suit was included within his tenure. Against that decision this appeal is preferred by the defendants and two questions of law are urged before us. It is conceded that the finding that the land in suit was included within the plaintiff's tenure cannot be assailed in second appeal, being a finding of fact. The two questions on which we have been addressed are with reference to the pleas of res judicata and limitation. Both these grounds were decided against the defendants by both the Courts below.

(2.) The objection on the ground of res judicata arises in this way. In the previous rent suit, the Court found that the plaintiff had failed to prove that; plot 5 appertained to the disputed holding of the defendants. It was also remarked that the evidence adduced by the plaintiff to identify the land as included in his kabala was neither sufficient nor reliable. The issue which was framed by the learned Subordinate-Judge in the appellate Court in the rent suit was in these terms: It plot 5 of the plaint included in the disputed holding.

(3.) It is argued on the authority of a, number of cases that the decision in the rent suit that the plaintiff had no title to the land in dispute is res judicata in the present suit, as the finding, in that suit was the ground work for the decision arrived at, namely that the plaintiff was not entitled to rent in-respect of that plot. This argument is met on behalf of the plaintiff- respondent on two grounds. First, that the finding in the previous suit that the plaintiff had failed to prove his title to plot 5 was incidentally arrived at in the course of determination of the principal issue in the suit, namely, whether the plaintiff was entitled to recover rent in respect of that plot. Secondly, it is submitted that a decision in a rent suit with reference to title is not res judicata in a subsequent declaratory and possessory suit. With regard to the first point, the best authority is the decision of their Lordships of the Judicial Committee in Run Bahadur Singh V/s. Lucho Koer [1884] 11 Cal. 301. In that case, a suit for rent was brought by the widow of as deceased Hindu. The brother of the widow's husband intervened and challenged the right of the widow to sue alone for rent on the ground that he had joint interest and ownership in the land with his deceased brother. That suite was decided in favour of the widow. Subsequently, the brother brought a suit against the widow for a declaration that he was joint with the widow's husband. It was argued that the decision in the previous rent suit was res judicata on this question. Their Lordships of the Judicial Committee after disposing of the plea on several other grounds observed: Having regard, however, to the subject-matter of the suit, to the form of the issue. (which was set out), and to soma expressions of the learned Judge, their Lordships are further of opinion that the question of title was no more than incidental and subsidiary to the main question, namely, whether any and what rent was due from the tenant and that on this ground the judgment was not conclusive.