JAYARAM BHIVAJI ACHAREKAR Vs. DATTATRAYA JAYRAM PRABHU- DESAI

JUDGEMENT

(1.) The defendant-respondent was admittedly the owner of the land in suit. In suit No. 159 of 1921 in ejectment against the plaintiff appellant, the latter set up a defence of permanent tenancy which he failed to establish in the trial Court. The present defendant respondent obtained a decree. The plaintiff appealed in appeal No. 131 of 1923 to the District Court and gave a purshis as follows : There having been no proper opportunity for us to adduce evidence in the lower Court we could not duly prove our tight of permanent tenancy. We have no objection, therefore, to the decree of the lower Court being confirmed. Only the question of permanent tenanoy should be kept undecided and we should be left free to bring a separate suit to have our right of permanent tenancy established.

(2.) That purshis for some reason, which is not intelligible, was accepted by the learned First Class Subordinate Judge A.P., Mr. M.H. Vakil, who ordered "that the decree of the lower Court is confirmed with costs. Only the appellant is permitted to file a separate suit to have his right of permanent tenancy established."

(3.) It is difficult to characterise this order in appeal in sufficiently strong terms. In fact it practically relegated the parties to their position they were before the suit was filed and multiplied litigation needlessly, Before the First Class Subordinate Judge, A.C.J. the only question was of permanent tenancy, and it was his duty 1929 to decide it. That plain duty was shirked in disregard of the law. However that might be, the respondent then tried to execute the decree and obtain possession. The appellant brought Dattaieaya the present suit No. 26 of 1926 for a declaration that he was Madgavhar J. entitled to retain possession of the plaint property as a permanent tenant, and that the defendant was not entitled to recover possession as per decree in suit No. 159 of 1921. The trial Court held that the suit was not maintainable in view of the decree in the former suit and dismissed the suit. The District Court in appeal confirmed the decree. It also expressed an opinion that if the appellant handed over possession as ordered in the former decree, it would be open to him to file a suit that he was a permanent tenant and entitled to get possession of his property, thus indicating a third suit, to retry an issue which had been already once tried.