1. The plaintiff brought a suit for rent in 1898 in respect of certain plots of land said to be the mal lands of their mouzah Narainpur. The defendants denied that the lands were the mal lands of the plaintiff's mahal; they denied that they were the tenants of the plaintiffs and asserted that the lands were their lakheraj. The Court held that the relationship of landlord and tenant was not made out but in arriving at that conclusion held that the lands were not the mal of the plaintiffs, but the lakheraj of the defendants. The plaintiffs brought this title suit for a declaration of their mal rights and for eviction of the defendants on the ground of their having denied the title of their landlords
2. The Court of first instance decreed the suit in full and the lower appellate Court confirmed the said decree with a slight modification.
3. The defendants appeal and on their behalf four points have been pressed upon me:
(1). That the plea of limitation was expressly taken by the defendants and yet no issue was framed upon it and no decree for khas possession should have been given without trying the question of limitation.
(2). That the title to the property is res judicata and should not be reopened.
(3). That the denial of the landlord's title is no ground of forfeiture under the Bengal Tenancy Act.
(4). That there could be no ejectment unless all the defendants can be shown or proved to have been parties to the denial and this has not been done.
4. There is no doubt the plea of limitation was taken in the written statement and in the grounds of appeal both in the lower appellate Court and here, but it does not appear to have been pressed either in the first Court or in the second Court obviously because if the defendants were found to be in possession as tenants when they denied the title of the plaintiffs in the suit of 1898, the question of limitation would not arise.
5. As regards the plea of res judicata, there can be no doubt that when the title of a third party is pleaded by the defendant in a rent suit and that third party is not a party to the rent suit, the question of title is not res judicata. When, however, the defendant in the rent suit claims a title in himself adversely to the plaintiff and there is no question as to the controversy in the subsequent title suit being between the same parties, the matter is not quite free from difficulty. In the case of Radha Madhub Holdar v. Monohar Mukerji 15 C. 756 : 15 I.A. 97, their Lordships of the Privy Council held that when the defendants in the rent suit claimed the zemindari right in himself on the allegation of the same having passed to himself and his plea was given effect to, the question of the defendant's title was res judicata in a subsequent suit for redemption based on the same title. This case was followed in the case of Kasiswar Mukhopadhya v. Mohendra Nath Bhandari 25 C. 136, where a decision in a rent suit that lands were not mal was held to be res judicata in a subsequent title suit. The test certainly is whether the matter was directly and substantially in issue in the rent suit.
6. On the other hand, in the case of Run Bahadur v. Lucho Koer 11 C. 391 : 12 I.A. 23, the Privy Council said: ''Their Lordships are further of opinion that the question of title was no more than incidental and subsidiary to the main question viz., whether any and what rent was due from the tenant and on this ground also the judgment (in the rent suit) was not conclusive.' Mr. Justice Banerjee in the case of Kasiswar Mukhopadhya v. Mohendra Nath Bhandari 25 C. 136, treats this as a mere observation of their Lordships and thought that direct decision in the case of Radha Madhub Haldar 15 C. 756 : 15 I.A. 97. was a stronger authority to the contrary. Nityanunda Sarkar v. Ram Narain Das 6 C.W.N. 66, is of a complex nature. The defendant in the rent suit claimed title in himself through his wife who was not a party to the case. The Court held that the case of Radha Madhub Haldar v. Manohar Mookerjee 15 C. 756 : 15 I.A. 97 did not apply as the question of title was not directly and substantially in issue in the rent suit. The case of Sahadeb Dhali v. Ram Rudra Haldar 10 C.W.N. 820 seems to support the appellant but the part of the judgment relied on is the opinion of the learned Judge based on the cases of Radha Madhub Haldar v. Manohar Mookerjee 15 C. 756 : 15 I.A. 97 and Kasiswar Mukhopadhya v. Mohendra Nath 25 C. 136 the case itself being one in which the plea of the defendant in the rent suit was that the land in suit was not a separate jama by itself but a part of another jama. Then there is the case of Harihar Pande v. Chaudhry Keramat Hossain 9 C.L.J. 493 : 4 Ind. Cas. 175 the defendant in the rent suit claimed the land in suit as part of a rent-free holding. The Court of appeal below held that the relationship of landlord and tenant was not made out, but the defendant failed to prove his rent-free title and the land was assessable to rent. The learned Judges held that the latter part of the decision was superfluous and unnecessary to be decided in the rent suit and the question of title was not res judicata. The learned Judges relied on the case of Thakur Magun Deo v. Thakur Mahadeo 18 C. 647, which followed the case of Run Bahadur v. Lucho Koer 11 C. 391 : 12 I.A. 23.
7. The result of all these cases leaning either to the one view or the other seems to be that the test of res judicata in cases of this kind is whether the issue of title was directly and substantially raised in the rent suit. Now no issues are generally framed in rent suits but the Court at the time of writing judgment sets out the points of dispute or issues raised. In this case the issue expressly set out for decision was whether the relation of landlord and tenant existed between the parties? The first constituent of the relationship of landlord and tenant is that the land should be the mal land of the plaintiff and the defendant should hold the same under the plaintiff. In the present case the defendants denied that the land was mal and that they held under the plaintiff. These were the matters that were decided. The matter was directly and substantially in dispute. I think, therefore, that the question whether the land was the mal land of the plaintiff is res judicata and the suit ought to fail on this ground. In fact the reason given by the plaintiffs for bringing the present suit is that they did not get an opportunity to collect sufficient evidence in the rent suit, is exactly within the mischief of the principle of res judicata that a litigant should not be allowed to mend his hand in the same matter and against the same adversary over and over again or there would be no end of litigation.
8. As regards the plea that there can be no forfeiture against a rayat under the Bengal Tenancy Act, I think this case is not distinguishable from the case of Khater Mistri v. Sudruddi Khan 34 C. 922 and I am bound to follow it: the arguments of Wilson, J. in the case of Debiruddi v. Abdur Rahim 17 C. 196 are quite sound so far as they go: but I think that as soon as the relationship of landlord and tenant is found to be wanting, the defendant becomes a trespasser and the provisions of the Bengal Tenancy Act are no longer applicable.
9. The last point is that the denial by all the defendants has not been proved. It is admitted that the written statement of the defendants in the rent suit was not filed in this case but at the same time it was no body's case that any one did not make the denial. The question is one of fact and not having been raised in the lower Courts I do not think it proper to go into this new aspect of the case.
10. The appeal is, therefore, decreed with costs.