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Kuppuswami Mudali Vs. B. Subba Naidu - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in62Ind.Cas.501
AppellantKuppuswami Mudali
RespondentB. Subba Naidu
Cases ReferredBommidi Bayyan Naidu v. Bommidi Suryanarayana
Excerpt:
.....attachment for later arrears--res judicata--civil procedure code (act v of 1908), section 11, expl. iv. - - 2. in that former suit (which was also for setting aside the attachment of the holding for arrears of rent due for fasli 1323) the landlord set up two defences, namely, that the tenant having raised the second and third crops with the landlord's water was liable to pay fasli jasthi and (2) that even if he did it with the aid of his (tenant's) own well water, he was still bound in law to pay fasli jasthi. as the learned chief justice states, any ground of attack or defence which, by virtue of the explanation iv to section 11 of the civil procedure code, is deemed to have been directly and substantially in issue in a suit, must also be deemed to have been heard and finally decided..........proper, having regard to the fact that it contained a term that the landlord is entitled to charge fasli jasthi, for the second and third crops, though not raised by the landlord's water. if that question is res judicata by the decision in a former suit between these same parties as regards the same holding in s.s. no. 1123 of 1914, the question has to be answered in the negative.2. in that former suit (which was also for setting aside the attachment of the holding for arrears of rent due for fasli 1323) the landlord set up two defences, namely, that the tenant having raised the second and third crops with the landlord's water was liable to pay fasli jasthi and (2) that even if he did it with the aid of his (tenant's) own well water, he was still bound in law to pay fasli jasthi. he did.....
Judgment:

Sadasiva Aiyar, J.

1. The plaintiff (appellant) brought the suit, out of which this second appeal has arisen, to set aside the attachment of his holding effected by his landlord, the defendant, for recovery of arrears of rent for Fasli 1325. The only question is whether the pattah tendered is proper, having regard to the fact that it contained a term that the landlord is entitled to charge fasli jasthi, for the second and third crops, though not raised by the landlord's water. If that question is res judicata by the decision in a former suit between these same parties as regards the same holding in S.S. No. 1123 of 1914, the question has to be answered in the negative.

2. In that former suit (which was also for setting aside the attachment of the holding for arrears of rent due for Fasli 1323) the landlord set up two defences, namely, that the tenant having raised the second and third crops with the landlord's water was liable to pay fasli jasthi and (2) that even if he did it with the aid of his (tenant's) own well water, he was still bound in law to pay fasli jasthi. He did not contend that there was a contract in force between the parties, by which such fasli jatthi sould be lawfully claimed by the landlord. Issues (b) and (c) (see Exhibit C) were raised in that case raising the two questions disclosed by the defense. These issues were found against the defendant and it was decided that he could not claim fasli jasthi and that the pattah tendered for Fasli 1323 was improper, owing to its having contained tents imposing fasli jasthi for second and third crops. The suit was accordingly decreed to that extent. In the present suit, however, a fresh defence was put forward; namely, that there was a centre at in the year 1886, under which the landlord was entitled to charge fasli jasthi for second and third crops, though not irrigated by the landlord's water. We think that this new defence is not open and that this is a clear ease of res judicata, and we need refer only to the Full Bench decision in Bommidi Bayyan Naidu v. Bommidi Suryanarayana 17 Ind. Cas. 445, where it was held that the decision of the question as to the proper terms of the pattah in respect of one fasli is res judicata for subsequent faslis also. As the learned Chief Justice states, 'any ground of attack or defence which, by virtue of the Explanation IV to Section 11 of the Civil Procedure Code, is deemed to have been directly and substantially in issue in a suit, must also be deemed to have been heard and finally decided adversely to the party who failed to raise it.' The lower Appellate Court was, therefore, wrong in deciding on certain irrelevant documents (Exhibits A, B and so on) that the question was not res judicata. In the result, the decision of the lower Courts will be set aside and a decree will be passed in plaintiff's favour setting aside the attachment, so far as it was directed to the recovery of the fasli jasthi teerva. The appellant will get his costs here and in the lower Appellate Court from the defendant. As, however, he sued for raising the attachment as a whole, without making any distinction between the portion of the landlord's claim in respect of which the attachment could stand and the portion in respect of which it was illegal, the parties will bear their respective costs in the Court of first instance.

Napier, J.

3. I agree.


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