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.
4. It is argued for the appellant that the former decree itself does not compel the plaintiff to give up possession and that the suit should not have been dismissed. It is contended for the respondent that the appellate decree is ambiguous and is opposed to law and that the portion of it permitting the appellant to file a separate suit to have his right of permanent tenancy established should be treated as nugatory.
5. I am unable to say that the former appeal is invalid in law and it would be nearer the mark to say that it is opposed to almost everything else. On the other hand, it will be noticed that the present respondent could well have appealed against the portion permitting the present appellant to file a separate suit but that he did not do. Had he done so, the obvious order that this Court would have passed would have been a remand of the appeal to the District Court for hearing the appeal on the merits and for decision on the question of permanent tenancy. But as the appellate decree in the former suit stands, it appears that he is entitled to bring the present suit, the point not having been decided in appeal and the appellate Court having expressly given him permission to file a separate suit. That is the utmost extent of his right and no further. It does not follow that until he has established his right of permanent tenancy in the present litigation he is entitled to retain possession merely on the strength of the former order in appeal or because he has filed the present suit.
6. The appellant is still in possession under a stay order from this Court during the present litigation. That stay order must now be discharged.
7. The appeal is allowed to this extent that the decrees of the lower Courts dismissing the suit are set aside. The trial Court will proceed to decide the suit on the merits on the question of the right of permanent tenancy which the present appellant claims. The order staying execution of the decree in Appeal No. 131 of 1923 of the District Court of Ratnagiri will be discharged.
8. The costs throught including the stay application will be costs in the cause.