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Aparnath Mukherjee Vs. Kanai Lal Chatterjee and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 8 of 1948
Judge
Reported inAIR1950Cal300
ActsCode of Civil Procedure (CPC) , 1908 - Section 11; ; Bengal Tenancy Act, 1885 - Section 26F; ; Bengal Tenancy (Amendent) Act, 1938
AppellantAparnath Mukherjee
RespondentKanai Lal Chatterjee and ors.
Appellant AdvocateSitaram Banerjee and ; Md. Asir, Advs.
Respondent AdvocateShyamadas Bhattacherya, Adv.
DispositionAppeal dismissed
Cases ReferredBalai Ghand v. Nibaran Chandra
Excerpt:
- .....pre-emption proceedings disputed the claim of the pre-emptors inter alia on the ground that the holding in question was a mokrari mourashi holding and that pre-emption under section 26f, bengal tenancy act could not be allowed. the learned munsif held that the holding in question was an occupancy holding and on this finding made an order under section 26p of the act. the plaintiff who was the opposite party in those proceedings unsuccessfully filed an appeal before the lower appellate court. thereafter on 12th september 1941 the plaintiff raised the present suit for a declaration that he had a right to the tenancy as a mokrari mourashi raiyat to the extent of 8 annas share and for a permanent in. junction restraining the defendant from taking possession on the ground that the decision.....
Judgment:

G.N. Das, J.

1. This appeal is by the plaintiff against a decision of out learned brother Sen J. The only question which has been canvassed before us on behalf of the appellant is a question of re judicata. The facts which bear on this question may be briefly stated as follows: Ramdhan, Panubala and Hiran Bala were co-sharer tenants of a holding, the share of Ramdhan being 8 annas and those of Panu and Hiran Bala 4 as. each. In March 1940 Ramdhan sold his 8 annas share to the plaintiff stating that the holding which was sold was an occupancy holding. The other co-sharers Panu Bala and Hiran Bala thereupon made an application for preemption under Section 26F, Bengal Tenancy Act as amended in 1938 (hereinafter called the Act). The plaintiff who was the opposite party in the pre-emption proceedings disputed the claim of the pre-emptors inter alia on the ground that the holding in question was a mokrari mourashi holding and that pre-emption under Section 26F, Bengal Tenancy Act could not be allowed. The learned Munsif held that the holding in question was an occupancy holding and on this finding made an order under Section 26P of the Act. The plaintiff who was the opposite party in those proceedings unsuccessfully filed an appeal before the lower appellate Court. Thereafter on 12th September 1941 the plaintiff raised the present suit for a declaration that he had a right to the tenancy as a mokrari mourashi raiyat to the extent of 8 annas share and for a permanent in. junction restraining the defendant from taking possession on the ground that the decision in Misc. Appeal No. 12 of the 1st Court, Subordinate Judge, Hoogbly, was erroneous.

2. One of the defences taken to this suit was that the question whether the plaintiff was a mokrari mourashi tenant or an occupancy raiyat was concluded by the decision in the pre-emption proceedings. Both the Courts below eoncurred in holding that the status of the plaintiff was that of a mokrari mourashi raiyat and that the decision in the pre-emption proceedings did not operate as a bar to the re. agitation of this question and on these findings gave the plaintiff, a decree. On appeal to this Court Sen J. took a contrary view and held that the question of the status of the plaintiff was decided in the pre emption proceedings and that this decision operated as res judicata. The appeal was accordingly allowed by the learned Judge. It is against this decision that the present appeal has been taken.

3. The sole question between the parties in this appeal is whether the decision in a proceeding under Section 26P of the amended Bengal Tenancy Act to the effect that the tenancy in question is an occupancy holding, is res judicata in a subsequent suit between the same parties for a declaration that the tenancy is a mokrari mourashi holding and not an occupancy holding.

4. The proceedings under Section 26F of the Act start on an application and not by a suit. The procedure to be followed in such cases is by force of Section 143 (2) of the Act, not regulated by the Code of Civil Procedure but is subject to any rules which may be passed by this Court under Section 143 (1) of the Act.

5. It is now fairly well settled that a question of title can be determined in such proceedings, though the Court is not bound to do so. Hossein Ali v. Kala Chand : AIR1947Cal444 , Balai Chand v. Nibaran Chandra : AIR1947Cal410

6. It has also been decided in this Court that Section 26F cl (10) of the Act provides for only one appeal, a second appeal being incompetent--Lord Bishop of Mylapur v. Meher Ali, 41 C. W. N. 993 : (I. L. R. (1937) 2 Cal. 496); Kulada. Prosad v. Pratibhanath : AIR1935Cal91 . Though Clause 10 does not expressly say that the order passed on such an appeal is final, the necessary implication is that the order passed on an appeal under Section 26F is final.

7. As the proceedings under Section 26P are instituted by an application and are not suits strictly so called Section 11, Civil P. C. does not in terms apply, but as has been held in numerous cases principles analogous to those embodied in the said section apply. I may refer, in particular, to the latest pronouncement of the Judicial Committee of the Privy Council in the case of Shivaraj v. Edappakath Ayissa Bi where the principles of constructive res judicata were made applicable to procedure in execution of a decree.

8. In the present case the question of status was expressly put into issue and was decided in the previous proceedings under Section 26F.

9. Mr. Banerjee appearing for the appellant strongly relies on the decision of this Court in the case of Maha Luxmi Bank v. Abdul Khaleque, 43 C. W. N. 1046. In that case, consequent on an order under Section 26J of the Act, directing the tenant to pay to the landlord the balance of the landlord's fees, the former instituted a suit for declaration that the holding in question was a mokrari mourashi holding and for a permanent injunction restraining the latter from realising the money decreed in the Section 26J proceedings. This Court held that the decision on the question of status in the 26B proceedings was not res judicata though the order directing the payment of the landlord's fees was conclusive and binding between the parties and could not be impeached in a later suit.

10. The reasons given in that judgment may be analysed as follows: (1) There was a vital difference between a suit and an application both as regards scope and the nature of the orders and the powers of the Court in dealing with the matter; (2) the Court dealing with an application under Section 26F cannot make any declaration as to the status of the tenant, (3) the question of the character of the tenancy cannot be deemed to be finally decided in proceedings under Section 26F which have been aptly described as summary proceedings; (4) the cases in which their Lordships of the Judicial Committee apply the principle of res judicata in cases outside Section 11, Civil P. C. fall into two classes, viz (a) where an interlocutory judgment has been passed in a proceeding and this was held to be conclusive in a later stage of the same proceeding; (b) where a contentious proceeding which though not technically a suit culminates in a final order which has all the charateristics of a decree and is open to challenge by way of appeal; and (5) on general principles as enunciated in Barrs v. Jackson, (1842) 67 R. R. 461: (14 L. J. Ch 433), either party may litigate for any other purpose provided the immediate object of the decision be not attempted to be withdrawn from its operation.

11. It may be pointed out at the outset that the decision in the case of Maha Luxmi Bank v. A. Khaleque 43 C. W. N. 1046 on the question of res judicata was obiter inasmuch the Munsif who decided the 26J proceedings expressly refrained from deciding the question of status (see p. 1054).

12. I am not unmindful of the fact that the above decision was 'followed in the case of Biswa Nath v. Bhupendra Nath, 46 C. W. N. 133; Srish Chandra v. Kala Chand : AIR1942Cal445 . All the above three cases were however decided before the amendment of Section 26P in 1938, at a time when there was no provision for an appeal to a higher Court. This last fact, viz. that there was no provision for an appeal to a superior tribunal, was relied on as a circumstance to indicate that the proceedings under Section 26J, Bengal Tenancy Act, were of a summary character.

13. Adverting now to the reasons given by the learned Judges in Maha Luxmi Bank's case, 48 C.W.N. 1046, I may however observe that it has been decided, as already stated, that the Court dealing with an application under Section 26F of the Act has power to decide the question of the title or of the nature of the tenancy if raised by the parties. It is also to be noted that in order to decide a question of res judicata the Court has to look to the substance of the matter and that the previous judgment which is relied on to raise the plea operates as an estoppel not merely as regards the actual decision but also as regards all the findings which are essential to sustain the judgment. Lilabati V. Vishnu Chobey, 6 C. L. J. 621 at p. 630; Panchu Mondal v. Chandra Kanta, 14 C. L. J. 220 at p. 224. (12 I.C. 9). It may also be noted that the proceedings under Section 26F under the amended law cannot be regarded as of a summary character. The adjudication made in such proceedings is open to challenge by way of as appeal.

14. It is not, however, necessary for the purposes of the present case to pursue the matter further. All the three cases referred to already were decided prior to the amendment, in 1938 when the right of appeal was expressly conferred, and are distinguishable on this ground. The decision in the case of Prosanna Kumar v. Adyasakti Debi : AIR1942Cal586 has been distinguished and dissented from in the case of Shankaracharjya v. Sademoni, 49 C. W. N. 680;(A. I. R. (32) 1946 Cal 474) and Balai Chand v. Nibaran Chadra. : AIR1947Cal410 The case is distinguishable because in that case the question of the nature of the tenancy was not raised or decided in the proceedings under Section 26P of the Act and as such the decision under Section 26F of the Act could not operate as res judicata. The case was also decided under the unamended Section 29F of the Act.

15. It is true that in applying the principle of res judicata to cases which are not suits strictly so called the tests for deciding the validity of the plea must be coveal with the conditions embodied in Section 11 of the Code subject to this that the proceedings, the decision, whereof is said to be a bar were not suits strictly so called but part of the character of suits. If we apply this principle to the facts of this case in my opinion there is no escape from the conclusion that the express decision on the question of status which was made in the 26F proceedings is binding on the parties in the present suit on the principle of finality In litigation. This view receives support from the Bench decision of this Court in the case of Balai Ghand v. Nibaran Chandra : AIR1947Cal410

16. The sole contention raised by Mr. Banerjee in this appeal fails and this appeal must be dismissed with costs.

Das Gupta J.

I agree.


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