1. This is an appeal by the plaintiff in a suit for declaration that the principal defendants have no title to 'kha' schedule land in suit and that the plaintiff does not hold any tenancy of Rs. 17-1-0 in respect of that land under the principal defendants, but that the said land belongs to the pro forma defendants and appertains to plaintiff's tenancy of Rs. 20-6-6 under the said pro forma defendants. The principal defendants brought Bent Suit No. 750 of 1934 against the plaintiff claiming rent for the 'kha' schedule land as appertaining to a jama of Rs. 17-1-0 under them. The defence taken by the present plaintiff in that rent suit was that he was not the tenant under them but held the land under the present pro forma defendants as appertaining to a tenancy of Rs. 20-6-6. This defence was found against the present plaintiff and the suit was decreed on contest. In respect of this decree the plaintiff in the present suit seeks for a declaration that the same is base-(less and fraudulent and prays for a permanent injunction restraining the principal defendants from executing the said decree.
2. The trial Court dismissed the suit holding that it was not maintainable under Order 35, Rule 5, Civil P.C., being an inter pleader suit. On appeal the learned Subordinate Judge set aside this decision holding that the suit was not an inter pleader suit and remanded it for trial on the merits. After remand the trial Court raised and tried inter alia the following issues:
(a) Does the land in suit belong to the principal defendant or to the pro forma defendants (Issue 5)? (b) Is the suit barred by res judicata (Issue 3)? (c) Is the decree in R. S. No. 750/34 fraudulent and inoperative (Issue 6)? (d) Is the plaintiff entitled to perpetual injunction (Issue 7)?
3. As regards issues 6 and 7 the Court found that there was no ground for holding that the contested decree was a fraudulent and inoperative one and refused to grant any injunction restraining the defendants from executing the decree. As regards (a), (issue 5), the trial Court held that this issue of title between the principal and the pro forma defendants cannot be raised or decided in this suit by the tenant. He observed:
The pro forma defendants do not appear during trial to adduce any evidence on the point. The principal defendants do not accordingly adduce any evidence of title in this suit. They have got their contested decree against the plaintiff, by which -their right as against the latter was established. That decision is binding against the plaintiff and he cannot obtain a negative declaration that 'kha' land does not appertain to any jama of Rs. 17-1-0 under defendants 1 and 2. This issue is thus disposed of without entering into the dispute between the principal and the pro forma defendants regarding the question of title.
4. As regards (b) (issue 3)-the trial Court held that the plaintiff's suit for declaration that 'kha' schedule land does not appertain to the jama of Rs. 17-1-0 under defendants 1 and 2 and for a further declaration in the ,presence of the principal defendants that the said land appertains to a jama of Rupees 20-6-6 under the pro forma defendants was clearly barred by the principle of res judicata in view of the decision in R. S. No. 750 of 1934 that there is relationship of landlord and tenant between defendants 1 and 2 and the plaintiff in respect of the jama of Rs. 17-1-0 for 'kha' schedule land. On these grounds the trial Court dismissed the suit. The plaintiff preferred an appeal against this decision and the Court of appeal below upheld the decision of the trial Court and dismissed the appeal. Against this decision the plaintiff has preferred the present appeal. Two points have been urged in support of this appeal, viz., (1) that in view of the remand order above referred to, the Court below should have decided the question of title raised on the merits and (2) that the Courts below have gone wrong in deciding that the declaration sought for was barred by the principles of res judicata. The decision as regards the decree in B.S. No. 750 of 1934 and as regards the permanent injunction are not assailed in this appeal and indeed it is unassailable. In order to dispose of the first point urged in this appeal it would be necessary to examine the remand order itself in detail. While upholding the contention of the plaintiff that his suit was not an inter pleader suit within the meaning of Section 88 and Order 35, Rule 5, Civil P.C., the learned Subordinate Judge remarked:
In the present suit, the plaintiff does not want a decision as to who is the rightful claimant; but the plaintiff wants to say that the pro forma defendants are the rightful owners of the lands in suit entitled to rents, and that the principal defendants have no right to get the rents from the plaintiff and the plaintiff further wants to have the decree obtained by defendants against him declared fraudulent and inoperative and also for injunction restraining the defendants from executing the decree. I am of opinion that such a suit cannot be an inter pleader suit within the meaning of Section 88, and Order 35, Rule 5, Civil P.C.
5. Rightly or wrongly, this was the view taken by the learned Subordinate Judge and he allowed the appeal, set aside the judgment and decree of the trial Court and sent the suit back for decision on the merits. This order of remand was appealable but no appeal was taken and consequently it became final and binding between the parties. It is contended on behalf of the appellant that after this remand order the Court below should have decided the following matters on the merits: (1) Whether the pro forma defendants are the rightful owners of the lands in suit entitled to rents; (2) Whether the principal defendants have any right to get the rents from the plaintiff; (3) Whether the decree obtained by defendants against the plaintiff is fraudulent and inoperative. (4) Whether the plaintiff is entitled to an injunction restraining the defendants from executing the decree. So far as points (3) and (4) are concerned, it is clear from what has been stated above that the Courts below did raise the appropriate issues and decide the matters involved therein and their decisions have concurrently been against the plaintiff.
6. As regards point (2) set forth above, the decision of the Courts below has been that the issue is res judicata so far as the plaintiff is concerned and, in my opinion, this is a decision on the merits within the meaning of the remand order. Whether or not the Courts below have taken the correct view of the law is a different matter and will be examined later. As regards point (1) viz., whether the pro forma defendants are the rightful owners of the lands in suit entitled to rent, it is true the Courts below have not come to any decision. According to them, in view of their decision about point (2), the plaintiff has no interest in having the point decided one way or the other. In whichever way the point be decided the plaintiff's liability to pay rent to the principal defendants remains unaffected, the same question having been decided conclusively against him in the previous rent suit inter partes. In my opinion if the decision of the Courts below on point 2 stands, then their decision on this point should also be allowed to stand. This will not, in my judgment, be going contrary to the remand order. In deciding that the plaintiff's suit ought not to fail on the preliminary plea that it is in the nature of an inter pleader suit, the learned Subordinate Judge looked to the suit as a whole and did not decide anything regarding each of its separate component parts. Now coming to the second point raised in this appeal, (viz., whether the Court below was wrong in deciding that the declaration sought for was barred by the principles of res judicata) it should be remembered that what has been decided is that the plaintiff's suit for declaration that 'kha' schedule land does not appertain to the jama of Rupees 17-1-0 under defendants 1 and 2 and for a further declaration in the presence of the principal defendants that the said land appertains to a jama of Rupees 20-6-6 under the pro forma defendant is barred being res judicata, this having been directly in issue in the prior rent suit and having been decided there against the plaintiff on contest. In my opinion this decision is correct. So far as the present plaintiff is concerned the matter was directly and substantially in issue in the previous rent suit. It was so in issue between the same parties : the presence of the third party (pro forma defendants) in the present suit does not affect the question of res judicata. The parties in both the suits are litigating under the same title. The Court which decided the rent suit was a Court competent to try the present suits in which the same issue has been subsequently raised. The matter in issue was heard and finally decided by the said Court. In my opinion, therefore, all the requirements of the matter having been res judicata are present and the decision arrived at by the Court below on the point is correct.
7. The learned advocate for the appellant relies on two decisions of this Court in support of his contention that this view is wrong. He relies on Dwarkanath Roy v. Ram Chand Aich ('99) 26 Cal 428 and Muktakeshi Dasi v. Manilal Jana : AIR1930Cal579 . Neither of these cases, in my opinion, decided anything which would support the view that as between the present plaintiff and the principal defendants the decision in the rent suit could not operate as res judicata. In Muktakeshi Dasi v. Manilal Jana : AIR1930Cal579 the facts leading to the litigation were that the plaintiff brought a suit against the defendants in 1916 for rent in respect of several plots, including plot No. 5. The defendants in that suit admitted their liability for rent, but averred that they held plot no. 5 not under the plaintiff but under a third party. That suit for rent was decreed. But the defendant's plea that plot No. 5 did not form part of the holding under the plaintiff prevailed. That judgment was pronounced in 1918. In 1923, the subsequent title suit was brought by the plaintiff for declaration of his title and recovery of possession of the said plot No. 5. Subsequently, the plaintiff gave up his claim for khas possession but asked the Court, under Section 157, Ben. Ten. Act, to settle a fair and equitable rent in respect of it. It was found that the issue that was raised and decided in the rent suit was : 'Is plot No. 5 of the plaint included in the disputed holding?' The decision on this issue in the rent suit was in the negative, and the subsequent title suit did not question this decision at all. Bather the basis of the subsequent title suit was this decision and the claim proceeded on the footing that plot No. 5 was not included in the holding of the defendant under the plaintiff.
8. In Dwarkanath Roy v. Ram Chand Aich ('99) 26 Cal 428, a suit was brought by the plaintiff-appellant to obtain a declaration that the plaintiff had a mohatram and kaimijara right to the land in suit and that defendant 1 was a karsha ryot under him and to recover khas possession upon ejectment of defendant 1. The plaintiff stated in his plaint that he had previously brought a suit for rent against defendant 1; that the defendant in that suit denied the existence of the relationship of landlord and tenant between him and the plaintiff, and alleged that a third party, who was no party in that suit, but was made defendant in the subsequent suit, was his real landlord and that the rent suit having been dismissed the plaintiff brought the latter suit. It was held that the question whether the relation of landlord and tenant existed at the time when the rent suit was instituted between the plaintiff in the subsequent title suit and the defendant in the rent suit was res judicata in view of the decision in the rent suit. But the relief sought in the title suit, viz., whether the land in dispute belonged to the plaintiff, and, if so, whether the plaintiff was entitled to compensation from the tenant defendant for the use of the land, was not barred. By the decision in the rent suit, the plaintiff was not barred in the subsequent suit for establishing his title to the land both against the alleged tenant and also against the person whose title as land-lord the tenant defendant had set up in the rent suit. This Pull Bench decision does not in my opinion help the present plaintiff appellant. As between the parties to the rent suit, the decision given there in so far as the same goes operates as a bar to the second suit. Consequently, the questions whether the present plaintiff holds the disputed land as tenant under the principal defendants and whether the land appertains to his tenancy of Rs. 17-1-0 under the principal defendants would be barred, these having been directly in issue in the rent suit and having been decided against the present plaintiff in that suit.
9. The case directly on the point seems to be Nanji Koer v. Umatul Batul ('12) 15 CLJ 653. There the landlord brought a suit against the tenant for rent. The tenant pleaded that he was holding the land as tenant of third persons. The tenant's defence was investigated and overruled and the suit was decreed in favour of the landlord as in the present case. As in the present case, the tenant then brought a suit for declaration that the third party and not the plaintiff in the rent suit was his landlord. It was held that the suit was barred by res judicata. Several cases on the point, including the Pull Bench decision in Dwarkanath Roy v. Ram Chand Aich ('99) 26 Cal 428, were discussed by Mukherjee J., and he pointed out that the decision of the Pull Bench did not negative the view that as between the parties of the rent suit the matter was res judicata. In the Full Bench case in Dwarkanath Roy v. Ram Chand Aich ('99) 26 Cal 428 the landlord's rent suit was dismissed and the decision that operated as res judicata was the negation of the relationship of landlord and tenant. As a result the alleged tenant was in the position of a trespasser and the landlord had his remedies even on this footing if he succeeded in proving his title. But where it is conclusively found that the relationship of landlord and tenant does exist, it is difficult to see how the tenant can seek to have it decided that his landlord has no title to the land. The issue that thus remains to be decided in the present suit converts it into an inter pleader suit pure and simple and in my opinion a tenant has no right to bring such a suit: see Koylash Chandra v. Goluk Chunder ('98) 2 CWN 61, Shelly Bonnerjee v. Raj Chandra Datta ('10) 37 Cal 552 and Sreenath Dutt v. Kaser Shaikh ('14) 1 AIR 1914 Cal 311. The result is that all the contentions raised by the appellant fail and the appeal is dismissed. I make no order as to costs. Leave to appeal is prayed for and granted.