PARDIP SINGH Vs. RAM SUNDER SINGH

JUDGEMENT

(1.) This is an appeal by defendants 1 party, under the Letters Patent, from a decision of Das J., sitting singly. The suit was for a declaration of title of and recovery of possession over 11 bighas and odd of land in village Raghopur Diara. In this village there are three tauzis, of which we are concerned with 11813. This tauzi is divided into four pattis of which one is called Sheikhain Patti, which in turn is divided into Bari Sheikhain and Chhoti Sheikhain. The plaintiffs and defendants second party are owners by purchase of the Chhoti Sheikhain Patti, and defendants 1 party, defendants 3 party and some of defendants 2nd party are the owners of Bari Sheikhain Patti. Two thousand bighas and odd accreted to the lands of the village some time about 1897, and, according to the plaintiffs, thereafter there was a partition, and the suit lands with others were allotted to the Chhoti Sheikhain Patti. According to the plaintiffs, these lands were settled with defendants 1 party on a rental of Rs. 34-8-0 some time thereafter. In 1933 the plaintiffs brought a rent suit (2760 of 1933) for the years 1337 to 1340 against defendants 1 party, who alleged in defence that there had been no partition, but simply occupation of separate portions of the lands by mutual arrangement for convenience amongst the maliks, and accordingly they or their predecessors-in- interest had been in possession all along not as tenants, but as co-sharer maliks. This suit failed. It was dismissed by the learned Munsif on the ground that no relationship of landlord and tenant existed, and this decision was upheld in appeal on 20 November 1935. On 17 November 1938, the present title suit was brought for ejectment, based on the repudiation of the landlord's title in the rent suit of 1933.

(2.) The learned Munsif held that the plaintiffs case of partition and allotment of the lands to their patti was correct, but he dismissed the suit as barred by res judicata and limitation. The learned Subordinate Judge on appeal agreed with the Munsif on the merits. He held that the rent suit decision was not res judicata on the question of title, and as the defendants possession only became adverse when they denied their landlord's title in 1933, and the suit was brought within 12 years of that date, there was no question of limitation. Accordingly he decreed the suit. This decision has been upheld in second appeal by Das J. The two points argued before him were with regard to res judicata and limitation, and upon both these points the learned Judge took the same view as the Subordinate Judge. The same two points have been argued before us in Letters Patent appeal.

(3.) I agree with Das J., on the point of res judicata and, as he has examined the question exhaustively, I do not consider it necessary to add much to what he has said, or to refer to the numerous decisions cited by him. The legal position is, in my opinion, quite clear. The decision in a rent suit is not res judicata on the question of title unless the question of title had to be decided, was expressly raised, and was expressly decided between the parties and in each; case it is necessary to examine carefully the decision in the rent suit before any opinion can be formed as to whether it operates as res judicata on the question of title or not. Ordinarily the decision would be res judicata only with regard to the existence of the relationship of landlord and tenant. The difference in the two classes of cases is very well illustrated in two Privy Council decisions, namely, Run Bahadoor Singh V/s. Mt. Lucho Koer 12 I.A. 23, where it was held that the decision was not res judicata as the question of title had been gone into only incidentally and collaterally, and Badhamadhub Holdar V/s. Manohar Mooherji 15 I.A. 97, where the question of title was directly decided in a rent suit, and the decision was held to be res judicata. In the present case I have carefully perused the decisions of the two Courts in the rent suit, and I find that the decision was expressly confined to the relationship of landlord and tenant, and the question of title was gone into only incidentally in order to decide the other question. The learned Subordinate Judge who heard the appeal has expressly stated that the only point raised before him was whether the defendants held the rent claimed lands as tenants of the plaintiffs, and he winds up by saying: Having thus considered the facts and evidence in the case I hold that the plaintiffs failed to establish the relationship of landlord and tenant between them and the defendants. It is also noteworthy that no attempt was made to decide the status of the defendants. There were three possibilities, namely, that the defendants were in possession as tenants, that they were in possession as co-sharer maliks, or that they were in possession as trespassers. The decision was that they were not tenants, but the question whether they were co-sharer maliks or trespassers was left entirely open.