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Raja Ram Vs. NaraIn Das and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtAllahabad
Decided On
Reported inAIR1927All206
AppellantRaja Ram
RespondentNaraIn Das and ors.
Cases ReferredDebi Pershad v. Bhagwan Din
Excerpt:
- - there was reliable evidence that there were other co-sharers. but the lower court has held that it is not permissible to go into this question by reason of a previous decision in a similar suit for rent wherein the defendants failed to resist the suit on the plea that the plaintiffs were not entitled to sue alone and in consequence had a decree for rent passed against them. 5. it has been argued by the appellants' counsel that the failure of the defendant no. 1 to pay rent for the years in suit furnished a different cause of action to that furnished by their failure to pay rent for others in the previous suit. the lower appellate court has given good reasons for rejecting this plea. these conditions have not been satisfied......co-sharers. the assistant collector allowed this plea and dismissed the suit. he held that as a previous suit by the plaintiffs on the same cause of action had been admittedly dismissed, it must be held that it had been decided once for all that the plaintiffs alone could not sue this former decision operating under the rule of res judicata. he also held that if the point was open to proof there was sufficient evidence that there were other co-sharers.2. in first appeal the additional district judge found that no previous suit had decided that the plaintiffs were not entitled to sue without joining the other co-sharers and that there was no admission of the plaintiffs of such a previous decision. on the contrary, by referring to the previous litigation, he found that the question of.....
Judgment:

Ashworth, J.

1. This second appeal arises out of a suit brought by the plaintiffs-respondents against the defendants-appellants for rent of a holding. The plaint sets forth that the plaintiffs are the zemindars of the village and that the Defendant No. 1 is an ex-proprietary tenant and the other defendants his sub-tenants. The defendants resisted the suit on the plea amongst others that the plaintiffs were only co-sharers and could not bring the suit without joining the other co-sharers. The Assistant Collector allowed this plea and dismissed the suit. He held that as a previous suit by the plaintiffs on the same cause of action had been admittedly dismissed, it must be held that it had been decided once for all that the plaintiffs alone could not sue this former decision operating under the rule of res judicata. He also held that if the point was open to proof there was sufficient evidence that there were other co-sharers.

2. In first appeal the Additional District Judge found that no previous suit had decided that the plaintiffs were not entitled to sue without joining the other co-sharers and that there was no admission of the plaintiffs of such a previous decision. On the contrary, by referring to the previous litigation, he found that the question of the plaintiffs being able to sue alone had been decided in their favour and that this decision operated as res judicata. Accordingly he allowed the appeal and decreed the suit.

3. It may be remarked that on the allegations in the plaint no decree should have been granted against any of the defendants except Defendant No. 1. According to the plaintiffs the Defendant No. 1 was the ex-proprietary tenant and the other defendants his sub-tenants. There being no contract between these other tenants and the plaintiffs, no claim for rent against these sub-tenants would lie; but the lower Court's decree is not appealed against on this ground and, therefore, it is unnecessary to interfere with the decree on this ground.

4. Three points are taken in the grounds of appeal. The first is that the suit was not maintainable under Section 194 of the Tenancy Act by the plaintiffs alone. It is common ground that the Defendant No. 1 is an ex-proprietary tenant in this land which was his sir land before he sold his share to the plaintiffs. It has been ruled by a Fall Bench of this Court in Debi Pershad v. Bhagwan Din [1913] 35 All. 27 that in such a case the vendor of a share in the village who becomes an ex-proprietary tenant in respect of his sir land is a tenant of the whole body of co-sharers and not merely of his vendees. I agree with this ruling and in any case I am bound to follow it. There was reliable evidence that there were other co-sharers. Under Section 194, therefore, of the Tenancy Act 2 of 1901 the plaintiffs were not entitled to sue without joining the other co-sharers in the absence of a local custom or special contract entitling them to collect the rent alone from this holding and to sue for the rent alone. But the lower Court has held that it is not permissible to go into this question by reason of a previous decision in a similar suit for rent wherein the defendants failed to resist the suit on the plea that the plaintiffs were not entitled to sue alone and in consequence had a decree for rent passed against them. I am of opinion that the lower Court is right in holding the matter to be settled under the rule of res judicata.

5. It has been argued by the appellants' counsel that the failure of the Defendant No. 1 to pay rent for the years in suit furnished a different cause of action to that furnished by their failure to pay rent for others in the previous suit. This argument ignores the fact that under Section 11 of the Civil P.C. it is only necessary that the previous decision should have settled a matter directly and substantially in issue. This expression is not synonymous with a cause of action. For instance a question of jurisdiction may be res judicata, but it cannot be a cause of action. Apparently in the previous suit the defendants did not plead that the plaintiffs could not sue alone but it is clear that they mights and ought to have made this plea a ground of defence. They lost the suit by failing to do so. The question, therefore, of the maintainability of the suit by the plaintiffs alone has been decided against the defendants and this decision is binding on the defendants under the rule of res judicata. It makes no difference that the previous decision may have been a wrong decision in point of law. A Court with jurisdiction to try a matter has jurisdiction to decide it wrongly even against a clear section of a statute and, if it so decides it wrongly, its decision may operate as res judicata. Likewise, where the point is not decided because the plea raising the issue was not raised when it ought to have been raised the Court will be deemed to have decided the matter against the defendants.

6. A second point taken in appeal is that the claim by the plaintiffs was barred by res judicata. The counsel of the defendants-appellants, has argued that on an admission by the plaintiffs' agent it should have been held that the matter was res judicata in favour of the defendants. The lower appellate Court has given good reasons for rejecting this plea. He points out that all that the plaintiffs' agent admitted was that a previous suit had been dismissed. This previous suit was not the suit for rent relied on by the plaintiffs as barring the defendants' plea under the rule of res judicata. It was a suit for ejectment and the fact that the Court refused to eject in pursuance of a decree for rent obtained could in no way operate against the plaintiffs in the present suit. The plaintiffs had got a previous decree for rent in a suit similar to the present one.

7. A third plea taken is that the whole claim for rent should not have been decreed. The meaning of this is that the plaintiffs should only have been given a decree for the proportion of rent which they as co-sharers were entitled to. A condition precedent laid down by Section 194 of the Tenancy Act for individual cosharers getting such a proportionate decree is that the remaining co-sharers have refused to join them in the suit and have consequently been joined as defendants. These conditions have not been satisfied. The plaintiffs could not, therefore, get a decree for proportionate share. I have held above that for the purposes of this suit they were under the rule of res judicata entitled to claim the whole rent.

8. For the above reasons this appeal fails and is dismissed with costs.


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