T.P. Naik, J.
1. This is an appeal by the defendant-tenant arising out of a suit for his ejectment filed by the plaintiff-respondent wherein he had also claimed a decree for arrears of rent alleged to be due from him.
2. The suit had been contested by the defendant-tenant, inter alia, on the grounds:
(1) that the plaintiff-respondent was not his landlord, for the reasons--
(a) that he had not been inducted into the suit premises by him or his pre-decessor-in-title, and
(b) that, in any case, the sale by which he claimed title to the suit premises was invalid and conveyed no title to him; and
(2) that the notice terminating the tenancy was invalid in law as, under a special agreement, he was entitled to a notice of three months.
3. The trial Court decreed the suit both for ejectment as well as for arrears of rent holding, inter alia, that the plaintiff-respondent was the landlord of the defendant-appellant tenant.
4. The defendant-appellant tenant appealed against the decree for eviction only, which has been dismissed by the lower appellate Court.
5. In this second appeal, which again is filed against the decree for eviction only, the learned Advocate-General for the appellant tenant contends that as the plaintiff-respondent was not his landlord, he was incompetent to evict him.
6. Shri R. S. Dabir, the learned counsel for the respondent, on the other hand contends that the appeal, in so far as it seeks to challenge the finding that the plaintiff-respondent was not his landlord, has no merit as that issue is barred on the general principle of res judicata and cannot be re-agitated in this appeal.
7. It is not disputed that the decree for arrears of rent not having been appealed against had become final. It is also not disputed that the said decree was based on the finding that the plaintiff-respondent was the landlord of the appellant-defendant tenant.
8. The question, therefore which arises for consideration is whether the finding of the trial Court that the plaintiff respondent was the landlord of the defendant-appellant tenant can be challenged in this second appeal.
9. In my opinion, the said finding cannot be challenged as it had become final and conclusive between the parties on the general principle of res judicata.
10. It is settled law that where only a part of the decree is appealed from, the rest of the decree may become final and operate as res Iudicata: (Mulla's Civil Procedure Code, Thirteenth Edition, p. 102). In Badri Narayan Singh v. Kamdeo Prasad Singh, AIR 1962 SC 338, A, B and C contested an election to the Legislative Assembly. A was declared elected. C filed an election petition to set aside the election of A on the ground that A was guilty of corrupt practice and that both A and B held offices of profit under the State Government. By this election petition he claimed that the election of A be declared void and that he be declared duly elected- The Election Tribunal set aside the election of A but did not declare C to have been duly elected, inter aha, on the finding that A was guilty of corrupt practice.
It was also found that both A and B did not hold offices of profit as alleged. Both A and C appealed to the High Court. The High Court held that both A and B held offices of profit; but that A was not guilty of corrupt practice. In the result, it dismissed the appeal of A setting aside his election, though on a ground different from that of the Election Tribunal. It also allowed the appeal of C. A appealed to the Supreme Court against the order declaring C to be duly elected. No appeal was filed against the setting aside of his own election on the ground that he and B held offices of profit.
On the objection as to the maintainability of the appeal because of non-challenge to the order of the High Court in A's appeal, the Supreme Court said:
'The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals. It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit. He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes. He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject-matter of Appeal No. 7. This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the High Court did not agree with the Election Tribunal about the appellant's committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit. The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision. The High Court came to two decisions. It came to one decision in respect of the invalidity of the appellant's election in Appeal No. 7. It came to another decision in Appeal No. 3 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2. as Chatwal, was not a properly nominated candidate. We are therefore of opinion that so long as the order in the appellant's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal. which is founded on the contention that that finding is incorrect.'
Again, in Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332, it said:
'Our conclusion on the question of res judicata raised in the present appeals is this. Where the trial Court has decided two suits having common issues on the merits and there are two appeals therefrom and one of them is dismissed on some preliminary ground, like limitation or default in printing, with the result that the trial Court's decision stands confirmed, the decision of the appeal Court will be res judicata and the appeal Court must be deemed to have heard and finally decided the matter. In such a case the result of the decision of the appeal Court is to confirm the decision of the trial Court given on merits, and if that is so the decision of the appeal Court will be res judicata whatever may be the reason for the dismissal.'
11. In view of the aforesaid decisions, the question that the plaintiff-respondent was not the landlord of the appellant-defendant tenant is not open to challenge in this second appeal for the reason that as the judgment and decree regarding arrears of rent had not been challenged by the defendant-appellant, it had become final and conclusive between the parties and as that decree proceeded on the footing that the plaintiff-respondent was the landlord of the defendant-tenant, the issue that the plaintiff-respondent was the landlord of the appellant-defendant tenant had also become final and conclusive between the parties and could not be allowed to be agitated even when challenging the judgment and decree so far as his eviction was concerned. He could no doubt challenge the decree for eviction but not on the ground that the plaintiff-respondent was not his landlord because if this were permitted, it would result in two inconsistent decrees in the same suit--the plaintiff-respondent being the landlord of the defendant-appellant for the purpose of recovering arrears of rent but not his landlord for the purpose of filing a suit for his eviction.
12. The other questions raised in the memorandum of appeal are all questions of fact and as the decisions on them are binding on me in second appeal, they cannot be challenged in this second appeal.
13. The appeal fails and is dismissed with costs.