1. In this suit, the plaintiff wants a declaration of his title to and recovery of possession of land, which he claims to hold under defendants 3 and others. He had a lease from them, of which the time expired in 1322, after which he claims to have held over until he was dispossessed by the defendants on 22nd Chaitra 1328. The defence is that plaintiff gave up the land at the end of 1322, when his lease expired, after which the land was in khas possession of defendants 3 and others until defendants 1 and 2 took a lease from them on 25th Chaitra 1323, and have been in possession since that time. The plaintiff brought a suit under Section 9, Specific Relief Act, in 1329. In that suit it was found that he had not been in possession of the suit land within six months of the institution of the suit, which was, accordingly, dismissed.
2. In this appeal it is urged, first, that this suit is barred under the provisions of Article 3, Sch. 3, Ben. Ten. Act, having been brought more than two years from the date of dispossession by defendants 1 and 2, which was in collusion with the landlord-defendant 3, and, second, that the point of time, at which the plaintiff was dispossessed, being a necessary issue in this suit with regard to the question of limitation, the decision of that issue in the suit under Section 9, Specific Relief Act, is res judicata between the parties. In support of the latter proposition the appellants rely on the case of Raj Gopal Bhattacharji v. Sarat Kumari Debi : AIR1928Cal758 , which appears to be very much on all fours with the present case. The judgment of that Section 9 case has been exhibited. It is admissible in evidence under Section 40, Evidence Act, and shows that on the issue, as to whether the suit was within time, it was found on evidence that the plaintiff was not in possession within six months of the suit. In the present suit, the time at which the plaintiff was dispossessed is a matter directly and substantially in issue in connexion with the question of limitation, and that was also a question directly and substantially in issue in the Section 9 case between the same parties, litigating under the same title, in a Court competent to try the subsequent suit and a question, which was finally decided by that Court. The appellants therefore appear to be right in their contention that the decision in the Section 9 case was res judicata on this issue. For the respondents reliance is placed on the case of Chhadek Karikar v. Sayad Ali Kaviraj : AIR1925Cal1046 in which the learned Judge stated as follows:
Having regard to the summary character of the proceedings (under Section 9, Specific; Relief Act) and the fact that in the very section itself it is stated that nothing stated therein should bar any person from suing to establish his title and recover possession, even if he fails to recover possession in the said proceedings, it is evident that the legislature did not intend to give the proceedings the character of finality which is essential to invest the decision with a character which will make it operative as res judicata.
3. Thus the learned Judge bases his decision on two grounds, first, the statement in Section 9, Specific Relief Act, that nothing stated therein should bar any person from suing to establish his title and to recover possession, and, second, that proceedings under Section 9 have not the character of finality necessary to operate as res judicata. As to the first ground, it is not sought to bar the present suit through anything stated in Section 9, Specific Relief Act; it is sought to bar it on the grounds of res judicata: as to the second ground the answer is given by the learned Judge himself in an earlier portion of his judgment. He refers to the observations of the Judicial Committee in the case of Gokul Mandar v. Pudmanund Singh (1902) 29 Cal 707 in reference to the case of Duchess of Kingston (1776) 2 Sm LC 13 Ed 644, where they say:
The essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction,' and goes on to say:
As the contention in the present case is substantially to the effect that an issue should not be retried inasmuch as it was directly and substantially tried in a former suit between the same parties, the question has to be determined upon the provisions of Section 11, Civil P.C., and it is not open to rely on the principle of finality which forms the basis of the general law of res judicata apart from those provisions and this principle has been recognized by the Judicial Committee in a series of cases.
4. Now whatever the character of the proceedings under Section 9, Specific Relief Act, they constituted a suit and the date up to which the plaintiff was in possession, was a necessary issue in that suit. It was found in evidence that he was not in possession within six months of that suit, or in other words he was not in possession on 19th November 1921, the suit having been instituted on 19th April 1922. He thus lost possession more than two years before the present suit which was instituted on 28th November 1923. This decision is res judicata on the issue in the present suit as to whether the suit is barred by special limitation under Article 3, Sch. 3, Ben. Ten. Act, if that article is applicable to the present case. The next question we have to consider is whether, in the circumstances of the present case, that article is applicable. To make it applicable, it must be shown that the landlord had a hand in the dispossession. In the present case, although the plaintiff pleaded that defendants 1 and 2 dispossessed him in collusion with the landlord, the finding of the appellate Court is that the real dispossession was by defendants 1 and 2. It is suggested that learned Sub-Judge was under the impression that the landlord must physically take part in the dispossession on the spot, and that is why he came to no definite finding as to whether the dispossession was as alleged by the plaintiff, in collusion with the landlord. The learned advocate therefore maintains that this case should be remanded to the appellate Court for a decision on that point. However, we have considered the evidence of the plaintiff, who merely says he was dispossessed with the help of the lathials of defendant 2, and the finding of the trial Court, that the actual dispossession was by Sudarshan, defendant 2; we have also taken into consideration the fact that the defendants themselves maintain that there was no dispossession by the landlord but a surrender of the holding by the plaintiff. In these circumstances, there being no evidence that the landlord took part in the dispossession, we should not be justified in remanding the case. We find that Article 3, Sch. 3, Ben. Ten. Act, has no application and therefore the suit is not barred by limitation. This appeal is accordingly dismissed with costs.
5. I agree.