1. This is an appeal on behalf of defendants 1 to 4, and arises out of a suit for recovery of possession on declaration of the plaintiff's title. The subject-matter of the suit is a strip of land described in Schedule kha of the plaint and forms the western half of a portion of the southern bank of a tank called Jinasini tank in the town of Bankura. The tank with its bank is dag No. 2804 of Khatian No. 1781, and has been described in schedule ka to the plaint. The plaintiff's case, shortly stated, is this. The whole of the land in Sohedule ka is said to have been held by one Dulal Keot in mokurari tenancy right from before the commencement of the Transfer of Property Act. On 7th February 1933, Dulal granted a dar mokurari settlement of this land to pro forma defendant 5, Bibhuti Bhusan Das, by a registered lease, Ex. 3. Then on 17th March 1933, Bibhuti transferred a portion of the land on the southern bank of the tank to the plaintiff by a kobala, Ex. 1, retaining the remaining portion for himself. Schedule kha comprises the, portion so transferred, and, as already stated, this is the land which is the subject-matter of the present dispute. The plaintiff's case is that she was dispossessed from this land by defendants 1 to 4 who admittedly held some land immediately to the south. Hence the present suit.
2. The defence is a denial of the plaintiff's title and possession, and an assertion of title and possession in and by defendants 1 to 4 themselves. It is said that by virtue of some amicable arrangement among the cosharer landlords, the land in dispute was in the exclusive possession of one Hari Sadhan Panja, an one anna cosharer, from whom the defendants acquired it by purchase on 8th Chaitra 1326, B.S. Both the Courts below held in favour of the plaintiff on all points, and gave her a decree. On the findings, it is not open to the defendants now to challenge the validity or genuineness of the dar. mokurari potta which was granted by Dulal to Bibhuti (Ex. 3), or of the kobala executed by Bibhuti in favour of the plaintiff (Ex. 1) nor can they question the fact that the disputed land is covered by both the documents. The appellants, however, have strenuously contested the concurrent finding as to the title of Dulal from whom the plaintiff seeks to derive her own title. The Courts below found that Dulal was a mokurari tenant of the land of schedule kha, and that he had a transferable interest in it, which he could pass to Bibhuti, and Bibhuti, in turn, could pass to the plaintiff.
3. Mr. Mookerji has sought to assail this finding mainly on two grounds. In the first place, he says that in coming to this finding, the learned Judge in the Court of appeal below as well as the trial Court had acted on evidence which was inadmissible, and, secondly, it is contended that the question as to Dulal's tenancy is res judicata by reason of the decision in a previous suit to which both the present plaintiff and defendants 1 to 4 were parties. So far as the first ground is concerned, it is admitted that there was no written lease creating Dulal's tenanoy. The Courts below were accordingly obliged to determine the nature of the tenancy from surrounding circumstances, and, in particular, from the course of dealings by the parties concerned. It appears that Dulal had leased out several portions of the demised land by way of sub-leases, and these sub-leases were evidenced by kabuliyats which were all put in on behalf of the plaintiff. In all these kabuliyats, Dulal's interest was described as that of a mokurari tenant. There were also proceedings in suits for recovery of rent against Dulal by some of the cosharer landlords not, however including Hari Sadhan Panja, the vendor of defendants 1 to 4. In all these proceedings, again, Dulal was admitted to be a mokurari tenant. Mr. Mookerji argues that neither the kabuliyats nor the plaints or decrees in the rent suits were admissible in evidence against his clients, as they were not parties to the same. Reliance is placed on the principle underlying Section 18A, Ben. Ten. Act, although it is conceded that this section in terms does not apply to the present case.
4. In my opinion, however, as the learned Subordinate Judge correctly points out in his judgment, the argument is without force. The kabuliyats were undoubtedly evidence of the assertion of mokurari title on the part of Dulal, and, as such, there is no reason why they should not be held to be good evidence under Section 13, Evidence Act. Even if Section 18A, Ben. Ten. Act, be held to apply to this case, that would simply exclude these documents as evidence against the landlord of the incidents of the tenancy as described therein, not as evidence of the assertion of a claim as to the tenancy being of a particular description. The distinction, it may be said, is much too refined, and, for all practical purposes, it may not amount to anything. All the same, I am not prepared to hold that Section 18A, Ben. Ten. Act, necessarily precludes the applicability of Section 13, Evidence Act, to transactions in which the incidents of any tenure or holding are asserted or denied merely on the ground that the landlord is not a party to the same. It is not necessary, however, to press this point further in this case, seeing that the case is admittedly not governed by the Bengal Tenancy Act. The first ground urged on behalf of the appellants must therefore be overruled.
5. As regards the question of res judicata, the previous suit was a suit for partition amongst the co-sharer landlords to which Dulal was a party. A question arose in that suit as to whether the fact of Dulal's tenancy was a bar to a partition of the lands in which the tenancy was comprised among the co-sharers. Dulal appeared in the suit and filed a written statement, claiming the status of a mokurari tenant, and a specific issue was raised as to the character of his tenancy. The trial Court gave effect to Dulal's claim of mourashi mokurari tenancy. On appeal, the learned District Judge was not prepared to go so far. He merely held that Dulal had successfully proved his tenanoy right, and was not satisfied that he had been able to establish the mourashi mokurari interest which he had claimed. Mr. Moo-kerji's contention is that this amounts to a definite finding that Dulal was not a mourashi mokurari tenant, and that this operates as res judioata in the present suit. I do not think that I can accept the argument. The finding that really mattered in that suit was to the effect that Dulal was a tenant of the land. As to whether his interest was that of a mourashi mokurari tenant was not material.
6. It is quite true that the learned Judge did say that on the evidence adduced, it was not possible to hold that Dulal had successfully established the mourashi mokurari interest he had claimed, but, obviously, he did not intend this to be a final decision on the question, because, rightly or wrongly, in his opinion, it was sufficient to hold that Dulal was in possession in the right of a tenant, irrespective of the character of his tenancy. Mr. Mookerji tried to make the point that although that suit was decided by the Court of appeal below in favour of the defendant Dulal, it was still open to Dulal to appeal against the finding in so far as it went against him on the question of the nature of his tenancy, and that inasmuch as he had not done so, that finding must be deemed to have been final and conclusive. It may be conceded that a party may, in certain circumstances, prefer an appeal against an adverse finding by the Court, though the ultimate decree in that suit may be in his favour. All the same, the question as to whether a party should or should not appeal to avoid the risk of the adjudication being final against him will depend upon the facts of each particular case, I do not think that, in this particular case, having regard to the views expressed by the learned District Judge in the appeal, it can be said that Dulal was required to file an appeal against the so-called finding regarding the nature of the tenancy right, on pain of the question being finally concluded against him for all time to come. In my opinion, the learned Subordinate Judge here took the correct view in the matter, and I hold that it was open to him to come to an independent finding regarding the nature of Dulal's tenancy irrespective of what the District Judge might have said in the previous suit,--what he said in the suit being no more than mere obiter. The second ground urged in support of the appeal therefore also fails. The result is that this appeal fails and is dismissed with costs.