HARA CHANDRA MISTRY Vs. BHAGABAT MANDAL

JUDGEMENT

(1.) The plaintiffs sue to eject the defendants alleging that they are under-raiyats and have been served with notice to quit. The defence is that the defendants are not under-raiyats, but that they are occupancy raiyats and that the notices were not sufficient. On these two points the learned Munsif held against the defendants and decreed the suit. On appeal the Additional District Judge agreed with the trial Court on the two points; but he held that the suit was barred by the principle of res judicata. The plaintiffs now come in second appeal.

(2.) It is pointed out that the question of res judicata, though raised at the trial, was not pressed before that Court. Nevertheless it is a point of law which can be properly urged in appeal; and the learned Additional District Judge was quite right in deciding it on merits. It is next pointed out that this question of res judicata has been decided upon the judgment in a previous suit in 1920 between the parties, but that neither the pleading nor the issues in that suit have been filed. But where the judgment is sufficient to indicate the pleadings and the issues, it affords sufficient materials for the decision of the question of res judicata; and I do not think that in the present case this objection has any force. The question of res judicata arises in this way : In 1920 the plaintiffs brought a suit to eject the defendants, their father having died in 1914. It was alleged by the plaintiffs that the defendants and their father had no tenancy right, that the defendants were trespassers, and that they had wrongfully dispossessed other persons who had been holding the land as tenants under the plaintiffs. It was further alleged by the plaintiffs that in a previous criminal case the defendants had given out that they were tenants in respect of the land and had filed rent receipts. In their defence, the defendants stated that they were tenants in respect of the lands for a long time past and that they were holding the lands at a rental of Rs. 67 a year the issues as they appear in the judgment are: (1) Are defendants 1 to 6 tenants or trespassers? and (2) Can the plaintiffs get has possession and mesne profits? The finding as recorded in the Judgment is: In the above circumstances the defendants cannot be trespassers and I believe they are tenants as alleged and I find the issue accordingly.

(3.) It is no doubt true that the question of status was not expressly decided. Upon this point the learned Additional District Judge remarks as follows: It was incumbent on the plaintiffs to make their case as they make it now that even if the defendants father be found to be tenant, the tenancy being under- raiyati-defendants could not inherit and were therefore trespassers and they not having done so it must be taken to be a matter which might and ought to have been raised as a ground of attack and it must be held that it was decided against the plaintiffs by implication when their prayer for khas possession was refused on the finding of the tenancy upon materials which show payment of rent by the father only up to 1320 B.S.