1. This is a second appeal by the plaintiff directed against the decree dated 7th March 1941 passed by the civil Judge of Basti who confirmed a decree of the Munsif of the same place. It appears that there is a village known as Gaighat in the district of Basti and there is a bazaar attached to that village. The present dispute relates to that bazaar alone. The plaintiff-appellant raised an action for a declaration that the plaintiffs were owners in possession of the said bazaar and were entitled to realise the dues and to manage the bazaar. The defendants first set who are described as superior proprietors and were entitled to receive Rs. 70 annually as malikana allowance resisted the claim and pleaded that they have always been in possession of the bazaar and were realizing the rent and managing the same through the defendants second set who were the agents. A further plea was taken by the defendants, first set, that the plaintiff's claim was barred by limitation. The suit was dismissed by the learned Munsif and his judgment was upheld by the learned civil Judge.
2. Now the main question which has been argued before me in this appeal is as to what was the effect of Civil Suit No. 197 of 1905 which was brought by the superior proprietors who are now represented by the defendants first set and which suit had abated. It appears that in the year i905 there was a partition of village Gaighat between the various cosharers and the bazaar was also included in that partition. The superior proprietors represented by the defendants first set filed an objection to those partition proceedings but only after the tariqai taqsim was sanctioned. That objection was rejected by the partition officer on 24th May 1905. The superior proprietors then brought a suit in the Court of the Subordinate Judge of Gorakhpur for a declaration of their rights in the bazaar. This suit was No. 197 of 1905. It was originally dismissed by the trial Court but when the plaintiffs in that case went in appeal, to the District Judge the judgment of the trial Court was set aside and the suit was remanded for a fresh trial on the merits. After the order of remand when the suit was pending in the trial Court some of the defendants in that case died and as no steps were taken to bring the legal representatives of the deceased defendants on the record within time the suit was declared to have abated. The plaintiffs in that suit filed an appeal against the order of abatement but that appeal was also dismissed. It is now contended on behalf of the plaintiffs that the defendants, first set, are now debarred from setting up their possession, as their Suit No. 197 of 1905 had abated, while on behalf of the defendants it is contended that the only effect of the abatement of the Suit is that the plaintiffs in that ease who are represented by defendants, first set, now cannot bring a fresh suit on the same cause of action but that it does not operate as res judicata and cannot prevent the defendants from setting up their title or possession to the property in dispute.
3. The learned Munsif relying on a ruling in Jayasingh Lalchand v. Gopal Teshwant 6 Bom. L.R. 638 has held that the defendants were not barred from setting up their title and the learned Civil Judge has agreed with that view. On behalf of the other side reliance is placed on the ruling in Raju v. Ram Chand ('33) 20 A.I.R. 1933 Lah. 752 which according to them is in conflict with the Bombay ease and goes to the length of debarring the defendants from setting up any defence. I have given the matter my best consideration and in my opinion there is no conflict between the two rulings. The Bombay ruling reported in Jayasingh Lalchand v. Gopal Teshwant 6 Bom. L.R. 638 lays down that the effect of the abatement is that the plaintiff in the suit abated or those claiming under him are prevented from suing again on the same cause of action. It further lays down that the order of abatement does not extinguish the title of the plaintiff in the suit abated and that the plaintiff is not debarred from defending his possession or rights by relying upon his true title. The Lahore case also propounds the same view. The facts of that case were that Raju defendant-appellant in that case brought a suit against the mortgagees and the mortgagors for a declaration that he was in possession of the land in dispute and was its owner. He got a decree in the terms of his relief as against the mortgagors but his suit abated against the mortgagees. Subsequently, the mortgagees brought a suit against Raju and Raju pleaded that he was in possession of the land and had already got a declaration against the mortgagors. It was pleaded that Raju could not resist the claim of the mortgagee as his suit had already abated against him. It was held in the Lahore case that Raju could not bring a fresh suit to establish his title to the land nor could he ask for a declaratory decree to the effect that he was in possession of the mortgaged property, but at the same time it was remarked:
No authority has been quoted by the learned Counsel for the appellant to show that though Raju appellant cannot bring a suit himself to establish his title he can resist the claim of the plaintiffs in respect of the definite findings of both the Courts below that he is not in possession of the mortgaged property.
4. Now, the important point in this finding is that it was found by both the Courts below that Raju was not in possession of the mortgaged property and therefore he could not be allowed to establish his possession in face of the fact that his claim in the previous suit had abated. So it seems to me that the factum of possession was the chief decisive factor and as Raju was not found to be in possession they shut out his defence. But where, in spite of the abatement of the suit, the party whose suit has abated continues to be in possession he can certainly set up his possession in defence to a suit brought against him. The view that I have taken is supported by the observations of their Lordships in Bahimunnissa Begum v. Srinivasa Ayyangar ('20) 7 A.I.R. 1920 Mad. 580. It has been laid down in that ease, that:
The dictum of the judicial committee that an order of abatement operates as a judgment in favour of the defendant shows that in effect no distinction is made between a judgment obtained on merits and a judgment obtained on failure to prosecute the suit. So long as the plaintiff is unable to vacate the judgment and so long as the defendant continues in possession he can plead against the plaintiff and those claiming under him that the order of abatement is conclusive of his rights to the property.
5. The words underlined (here italicised) in this passage clearly show it is the actual possession which is the decisive factor. If the defendant in the suit which has abated continues to be in possession then of course the plaintiff cannot be allowed to set up his possession in a subsequent suit. But if the plaintiff in the abated suit continues to be in possession in spite of the abatement or even if he subsequently acquires possession he can certainly set up that possession in a subsequent suit. In the case before me it is the concurrent finding of both the Courts below that the defendants, first set, were all along in possession of the bazaar in suit and were realising rent and managing the same. In the face of these findings, it is impossible to hold that by the mere fact that suit No. 197 of 1905 which was brought by them against the present plaintiffs and which had abated they will be debarred from saying that they are in possession and cannot be dispossessed. In this view of the matter the conclusions arrived at by the two lower Courts were correct and the plaintiffs' suit was rightly dismissed. There is also a point raised in appeal that the defence of the defendants first party was barred by Section 233K, Land Revenue Act, but I do not think that that section is applicable because it in no way debars a defence and in the second place the defence of the defendants first party if upheld does not in any way interfere with the partition of the village itself as it only relates to the possession and management of the bazaar. The appeal fails and is dismissed with costs to the contending respondents. Leave to file an appeal under the Letters Patent is refused.