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Mota Holiappa Vs. Vithal Gopal Habbu - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtMumbai
Decided On
Case Number Second Appeal No. 587 of 1915
Judge
Reported inAIR1916Bom277; (1916)18BOMLR712; 36Ind.Cas.74
AppellantMota Holiappa
RespondentVithal Gopal Habbu
Excerpt:
.....decree.;the plaintiff sued, in 1910, to eject the defendant from certain lands, praying that the mulgeni lease executed by a predocessor-in-title of his to defendant was invalid and not binding on him, and that the plaintiff was entitled to evict the defendant as a yearly tenant. the court decided the first point in the plaintiff's favour; but held that for want of notice the plaintiff was not entitled at that stage to evict the defendant. after due notice given the plaintiff again sued the defendant in ejectment. the defendant pleaded once more the mulgeni lease in his favour. the lower courts held that the defence was barred by res judicata and decreed the claim, on second appeal :-;that the law of res judicata was applicable, inasmuch as in the earlier suit the first part of the..........the present suit is res judicata. the point arises in this way. in 1900, the defendant obtained a mulgeni lease from the manager of the temple, the predecessor-in-title of the plaintiff. in 1910, the plaintiff sued, the suit taking the form of ejectment, to recover possession of the land from the defendant on the ground that the mulgeni lease was bad arid no longer binding on him and that for breach of condition of the annual lease therefore the tenant was liable to immediate eviction. the plaintiff prayed for two quite distinct reliefs as is made abundantly clear from the judgment and the final order. those reliefs were, first, that it should be declared that the mulgeni lease of 1900 was invalid and not binding upon the plaintiff; second, that the plaintiff was thereafter entitled to.....
Judgment:

Beaman, J.

1. We are clearly of opinion that if this suit were not res judicata by the decision of the Suit of 1910, the B 90 plaintiff's claim would be barred by limitation. The only substantial question therefore is whether the present suit is res judicata. The point arises in this way. In 1900, the defendant obtained a mulgeni lease from the manager of the temple, the predecessor-in-title of the plaintiff. In 1910, the plaintiff sued, the suit taking the form of ejectment, to recover possession of the land from the defendant on the ground that the mulgeni lease was bad arid no longer binding on him and that for breach of condition of the annual lease therefore the tenant was liable to immediate eviction. The plaintiff prayed for two quite distinct reliefs as is made abundantly clear from the judgment and the final order. Those reliefs were, first, that it should be declared that the mulgeni lease of 1900 was invalid and not binding upon the plaintiff; second, that the plaintiff was thereafter entitled to evict the defendant as chalgeni or yearly tenant from the land in suit. The Court decided in favour of the plaintiff on the first ground, but for want of notice held that he was not entitled at that stage to evict the defendant, that is to say, the suit was for a a declaration and consequential relief, and the decree grants the declaration but dismisses the rest of the prayer of the plaintiff on account of a technical flaw. Those being the facts, the case is clearly, we think, distinguishable from the authorities to which our attention has been drawn such as Ghela Ichharam v. Sankalchand Jetha I.L.R. (1893) Bom. 597; Rango v. Mudiyeppa I.L.R. (1898) Bom. 296 Thahur Magundeo v. Thakur Mahadeo Singh I.L.R. (1891) Cal. 647 and Parbati Debi v. Mathura Nath Banerjee I.L.R. (1912) Cal. 29. The general rule deducible from these cases is one which has our complete concurrence, viz., that where an issue not material to the decision has been decided and is not embodied in the decree it will not constitute res judicata against the party who by reason of the decree being in his favour would not be in a position to appeal against the decision upon the separable single issue. That is not the case here. As we pointed out the decision of the Court in favour of the plaintiff upon the first part of his prayer finds a place in the decretal order and is as much decreed as the other part of the prayer which in the second part of that decretal order was rejected. In our opinion this constitutes clear res judicata. so far as the point now before us is concerned. We think that the defendant in that suit might have appealed had he wished to do so against so much of the decree as declared his mulgeni lease invalid and no longer binding upon the present plaintiff. We think the whole difficulty has arisen out of an unfortunate looseness of language in the latter part of the decree. What the learned Judge undoubtedly meant was not that the plaintiff's suit is dismissed, but that the rest of the plaintiff's suit is dismissed, and this is made the clearer by the order of the Court which immediately follows : 'Each party to pay its own costs,' the learned Judge evidently having been of the opinion, that the plaintiff had succeeded on at least half the claim and the defendant on the other half. And we need only add that the part on which the plaintiff succeeded is by far the most substantial and important.

2. This being our view it necessarily follows that the present appeal fails and the decision of the lower Courts must be confirmed with all costs.


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