B.N. Banerjee, J.
1. This application for revision is directed against an order passed by a learned Munsif, deciding a preliminary issue against the defendants.
2. Facts which are not disputed before me, may be shortly stated as hereinbelow set out.
3. On June 18, 1955. the petitioners, as plaintiffs, instituted T.S. No. 141 of 1955, against opposite party Nos. 1 and 2, claiming their eviction from a godown on Plot No. 517, Interest No. 285 in Mouza Kola, P.S. Panskura, District Midnapore and further claiming arrears of rent from the month of Magh 1361 B. S. to Jaistha 1362 B.S.
4. The case made by the plaintiffs in T. S. 141 nf 1955, was that the opposite party Nos. 1 and 2 (Defendants in that suit) became tenants under the plaintiffs in respect of a godown, on February 12, 1946, and the terms and conditions of the tenancy were incorporated in a registered deed of agreement. The tenants defendants in that suit (Opposite Party 1 and 2 herein) having had defaulted in payment of the rent, in terms of the agreement, the plaintiffs caused termination of the tenancy by a notice to quit.
5. The defendants (the present opposite party No. 1 and 2) contested the suit and their defence, inter alia, was that their father Nalini Kanto Bando-padhyaya had originally taken settlement of the disputed land with the structures existing thereon, namely, a small split-bamboo room, at an annual rent of Rs. 84/-, in non-agricultural tenancy right. The said Nalini Kanto removed the split-bamboo structure with the consent of the landlords, and himself constructed a corrugated iron sheet godown thereon for his Business purposes. The said godown was damaged by cyclone, in the year 1349 B. S., necessitating considerable repairs. Before making further investment in construction, the said Nalini Kanto asked the landlords, the present petitioners, to execute a proper document in writing in his favour. With the ulterior purpose of avoiding the effects of the West Bengal Non-Agricultural Tenancy Act, then on legislative anvil, the landlords-petitioners expressed their intention to execute such document only in the names of Nalini Kanto's sons, in place of he himself. Out-witted by the landlords, Nalini Kanto agreed to the proposals of landlords and that Is how a subsequent agreement was executed between the landlords and the defendants (opposite party No. 1 and 2). The agreement notwithstanding, it was Nalini Kanto who remained the tenant and continued in possession and reconstructed the godown. By possession (for over twelve years, Nalini Kanto acquired the interest of a non-agricultural tenant and the defendants succeeded to that interest. Alternatively, it was pleaded that the defendant themselves acquired non-agricultural tenancy right and were not liable to be evicted. So far as the claim for arrears of rent was concerned, it was pleaded that the rent had been tendered but wrongfully refused.
6. Amongst several issues framed, issues No. 5 and 9 were to the following effect:
Issue No. 5. Are the defendants monthly tenants under the plaintiffs? Is there any relationship of landlords and tenants between the parties?
Issue No. 9. Are the defendants tenants under West Bengal Non-Agricultural Tenancy Act? The learned Munsif decided the two issues in the manner hereinbefore quoted:
'From the evidence adduced therefore, it appears that the father of the defendants took settlement of the suit land and the then existing house standing on it In 1350 B. S. and that he effected repairments on it on a very large scale and at a substantial cost after execution of the deed of agreement. It also appears that it was he and not the defendants who carried on the business there and that though the monthly rent payable has always been paid from his business accounts the rent receipts have always been granted in the name of the defendants after the execution of the deed of agreement.
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It is the case of the defendants that their father took settlement of both the suit land and the then existing structures standing on it (vide para 15 of the written statement). But ex-definition (vide S. 2(5) of West Bengal Non-Agricultural Tenancy Act) non-agricultural tenant does not include any person who holds any such land (i.e. non-agricultural land) on which any premises occupied by such persons are situated if such premises have been erected or are owned, by the person to whom such occupier is.........liable to pay rent for such occupation.
There is not the slightest doubt that the suit land is non-agricultural land but the settlement of the house along with the land takes the present case beyond purview of the Non-Agricultural Tenancy Act. It is immaterial that the tenant, whoever he may have, spent a lot of money on the repairment of the suit structure. The same observations also apply in the case of the defendants,
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The defendants' case based on their claim of being non-agricultural tenants, therefore, is not tenable, It appears that the status of the tenants was that of ordinary tenants in respect of both the suit land and the house standing on it.
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I hold that the defendants are not non-agricultural tenants in respect of the suit property but that on the contrary they are monthly tenants in respect of it and the relationship of landlord and tenant existed between the parties. The issues are decided accordingly.'
Although of the aforesaid opinion, the learned. Munsif, nevertheless, held that the tenants were entitled to relief against forfeiture for non-payment of rent under the provision of Section 114 of the Transfer of Property Act, in the circumstances of the case. In that view of the matter he decreed the plaintiffs' claim for the arrears of rent but dismissed the claim for eviction.
7. The aforesaid judgment and decree were passed on May 31, 1957.
8. In January 1958, opposite parties No. 1 and 2 along with then- mother, who is the opposite party No. 3, instituted Title Suit No. 8 of 1958, in the Court which had decided the earlier suit, claiming declaration that they were non-agricultural tenants in respect of the land which was the subject matter of the former suit, in the self-same Court, (namely Title Suit No. 141 of 1955). They further prayed for a permanent injunction restraining the defendants (the present petitioners) from ejecting them from the land in suit, at any time in future.
9. Amongst the several lines of defence taken by the present petitioners in the later suit, one was, that the suit was barred by res judicata because of the decision about the status of the plaintiffs opposite party No. 1 and 2, made in Title Suit No. 141 of 1955.
10. On the aforesaid pleadings one of the issues raised was whether the suit is barred by res judicata, which was issue No. 2.
11. The said issue was taken up as a preliminary issue and was decided against the present petitioners with the following observations:
'Prime facie, therefore, the present suit is barred, by res judicata. The learned lawyer of the plaintiffs-argued that the present suit was maintainable all the same as the plaintiffs (i.e. defendants in that suit) had no chance of appealing against the decision of the court as the decision had been in their favour. * * * * *
I am of the opinion that the plaintiffs can carry on with this suit as the previous decision will not be res judicata. The decision of the question was status of the plaintiffs in respect of the suit land was not the basis of the decree ultimately made in the previous suit and as such it was not res judicata between the parties. As we have seen before the decree was barred completely on the provisions of Section 114 of the Transfer of Property Act. The plaintiffs had no opportunity of questioning the soundness of the decision as the suit had largely been decided in their favour. The rule of res judicata therefore cannot be applied in this case'.
12. It is the propriety of the aforesaid order which is being disputed before me.
13. Mr. Alok Gupta, learned Advocate for the petitioners, contended before me that the question of status of the tenants having had been heard and decided in the earlier suit did operate as res judicata and the Court below was in error in holding otherwise. Mr. Tana, on the other hand, contended that there was no scope for the application of the doctrine of res judicata because the plaintiffs' (who are the present defendants petitioners) claim in Title Suit No. 141 of 1955 was dismissed on another ground, notwithstanding that the issue on the status of the tenant-defendants in that suit had been decided in favour of the plaintiffs. Mr. Jana further contended that against the adverse finding on the-question of status, the tenants could not appeal because they had won in the suit and in such a case the adverse finding could not operate as res judicata.
14. The question whether the dismissal of a suit on a 'preliminary point only, notwithstanding the findings on merits in favour of the plaintiff, which did not form basis of the decree, operates as res judicata in a subsequent suit, wherein the same questions on merit were raised, been considered in a number of decisions. In the case of Nundo Lali v. Bidhoo Mookhy Debee, I. L. R. 13 Cal 17 O'Kinealy and Macpherson JJ. held that such findings on merits will not operate as res judicata. That decision was followed in the case of Thakur Magundep v. Thakur Mahadeo Singh, ILR 18 Cal 647, decided by Tottenham and Ghose JJ. Similar was the view taken by Harrington and Mookerjee JJ. in the case of Parbati Debya v. Mathura Nath, ILR 40 Cal 29 and it was held in that case that unless the decision on merit formed the basis of the decree it will not operate as res judicata.
15. The point was considered again by the Judicial Committee in the case of Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy, 48 Ind App 49: (AIR 1922 PC 241). In that case a Zamindar had sued for possession of a char land and the tenants had pleaded (1) an occupancy right and (2) that the suit was premature. The trial Judge had made a decree dismissing the suit, inter alia, holding that there was no occupancy right but that tho suit was premature. Upon an appeal by the Zamindar to the High Court the tenant filed a cross-objection to the finding that there was no occupancy right. The High Court affirmed the decree on the ground that the suit was premature and upon the cross-objection affirmed the finding that there was no occupancy right. In a subsequent suit between the successors-in-interest of the parties to the earlier suit, litigating over the same property, the question whether the tenant had occupancy right was raised. Lord Dunedin in delivering the judgment of the Board, observed:
'Their Lordships do not consider that this will found an actual plea of res judicata, for the defendants, having succeeded on the other plea, had no occasion to go further as to the finding against them; but it is the finding of a Court which was dealing with facts nearer to their ken than the facts are to the Board now, and it certainly creates a paramount duty on the appellants to displace the finding, a duty which they have not been able to perform.'
16. The aforesaid line of cases have been sought to be explained in several decisions of this Court. In one such case reported in Taritbarani v. Basumati. : AIR1925Cal985 , Mukerji J. observed as follows :
'It will be seen that there is no clause attaching to Section 11 of C.P.C. laying down that the decision of the issue should have been the basis of the decree. It is enough that the issue had been finally heard and determined and that it arose directly and substantially (and not incidentally or collaterally), for determination and that only means that it was necessary for the determination of the suit though it may not have been ultimately made the basis of the decree. Of course if the determination of the issue is inconsistent with the decree it cannot be said that it was necessary for the determination pf the suit and such a finding will be treated as unnecessary and will not operate as res judicata.'
17. There is a second explanatory decision by Mukherji and Mallik JJ. reported in Murad Biswas v. Basfi Mandal, AIR 1029 Cal. 449. In that case the previous suit was one in which the plaintiff had masked for declaration of Ms title to the land and for khas possession thereof, and the defence was that the defendant was not a tenant but a co-sharer of the plaintiff. It was found that the plaintiff had title to the land as the sole owner. But the notice to quit being defective the claim for possession was dismissed, although the decision as to title was made in favour of the plaintiff. The decision was upheld in the appeal. In a subsequent suit for possession, defence was again taken to the effect that the defendant was plaintiffs' co-sharer. The question arose whether the issue as to co-sharership could be gone into again or was barred by res judicata. The trial court and the court of appeal below held that the point was concluded by res judicata. Affirming the decision the High Court observed .
'The facts therefore are not that the suit was dismissed on a preliminary point making it unnecessary for the court to go into the other questions that arose in the suit but that the questions were decided and made the foundation of a decree declaring the plaintiff's title and one of the prayers in the suit, namely, that for khas possession, was refused on the ground that notice had not been served on the defendant. Under circumstances such as these the case to which the learned advocate for the appellant has referred, namely, that of ILR 13 Cal 17, has; In our opinion no application. The real reason on which this doctrine of res judicata is founded in so far as a case of the present description is concerned has been given by the Judicial Committee in the case of AIR 1922 P.C. 241 ..... where their Lordships say that they do not consider that a decision will found as actual plea of res judicata where the defendants having succeeded on the other plea, had no occasion to go further as to the finding against them. This cannot be said of the present case in view of the fact 'that the plaintiff's title was declared and it is only one of his prayers, namely, that for khas possession was refused on the ground that no notice was served. We are of opinion that the' Courts below were right in the view that they took on the question of res judicata.'
18. I am of the opinion that the present case is covered by the decision ot the Judicial Committee, 48 Ind App 49: (ATR 1922 PC 241), hereinbefore referred to. The cause of action for eviction in the earlier suit, namely, T.S. 141 of 1953 was forfeiture, because the lessees had broken an express condition of the lease regarding payment of rent. Whether the tenants were non-agricultural tenants or ordinary monthly tenants, they could in either event get relief against forfeiture, on deposit of arrears with interest and cost, as provided for in Section 114 of the Transfer of Property Act and that they did. Thereafter, it was not necessary to decide the question as to their status. Against the decision as to their status, the tenants had no opportunity to appeal, because the decree was in their favour. They stifled the claim as to eviction by a statutory procedure open to them and thereafter it was not certainly their desire to court a decision on their status. In such circumstances the decision as to the tenants' status, although made, will not operate as res judicata in the instant case, but the tenants will be bound to displace the finding as to their status made in the earlier suit.
19. Then again, the opposits party No. 3 was no party to the earlier suit, T.S. No. 141 of 1955. If she was a necessary party, as successor to Nalini Kanto, she cannot be, by any stretch of imagination, held to be bound by the doctrine of res judicata.
20. For the reasons aforesaid, I do not proposeto interfere with the order and I discharge theRule. There will be no order as to costs.