1. This is an appeal on behalf of the first defendant in an action commenced by the plaintiff-respondent for declaration that she was the tenant of the disputed land, not under the appellant, but under the second defendant. It appears that in 1906 the first defendant sued the plaintiff for recovery of rent of the disputed property. The plaintiff resisted the claim on the ground that she held the land as tenant not under the plaintiff but under the second defendant in the present litigation. That defence failed on the merits, and the Court found that the relationship of landlord and tenant was proved to have existed between the parties to that suit. The result was that a decree for rent was made in favour of the present first defendant. On the 5th October 1907, the plaintiff commenced this action and she joined as parties defendants, the first defendant, the successful plaintiff in the previous litigation, and the second defendant who was alleged by her to be her landlord. There was also a third defendant added to the suit, namely, the transferor of the first defendant. But we are not concerned with the third defendant at all because, so far as we can judge, no relief has been claimed as against him. The appellant defended the suit on the ground that it was not maintainable and that the question raised res judicata. The Court of first instance gave effect to this contention and dismissed the suit upon appeal; the learned Subordinate Judge has reversed that decision.
2. The first defendant has now appealed to this Court and on her behalf, the decision of the Subordinate Judge has been assailed substantially on two grounds, namely, first that the suit is in its essence an inter-pleader suit and is not maintainable, and secondly, that even if it be conceded that the suit as framed is maintainable the substantial question in controversy between the parties is res judicata and cannot be re-investigated in the present litigation. In our opinion, these contentions are well founded and must prevail.
3. In support of the first contention, it has been argued that the plain object of the plaintiff is to have it established that not the first defendant but the second defendant is her landlord in respect of the disputed land. In other words, the plaintiff has instituted this suit to have the controversy between these two defendants finally determined. The suit, therefore, is clearly in the nature of an interpleader suit and consequently not maintainable, in view of the decision of this Court in the cases of Roylash Chondra Dutt v. Golak Chunder Poddar 2 C.W.N. 61 and K.S. Bonnerjee v. Rajchandra Dutt 5 Ind. Cas. 577 : 14 C.W.N. 784 : 37 C. 552 : 11 C.L.J. 577 See also Maclean on Interpleader, page 24. The learned Pleader for the respondent, however, has contended that the real object of the suit is to obtain a declaration that the first defendant is not the landlord of the plaintiff, and that consequently the suit is one for declaration within the meaning of Section 42 of the Specific Relief Act. We are not prepared to accept this contention as well founded. But, even if the suit be taken to have been instituted under Section 42, it is fairly clear that it is open to two fatal objections. In the first place, we are not satisfied that a suit of this character is maintainable under Section 42 of the Specific Relief Act. That Section provides that any person entitled to any legal character or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the Court may, in its discretion, make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief. Now, the legal character which the plaintiff claims in the present litigation is that of a tenant in respect of the disputed land. The first defendant is not interested to deny that she is such a tenant. In fact, the case of the defendant is that she is a tenant and has been rightly made liable for rent. Consequently, if the suit be treated as one under Section 42 it is clearly one not within the scope of the provisions of the law. In the second place, the suit, even if framed as one for a declaratory decree, is barred under the proviso to Section 42 which lays down that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. If the contention of the plaintiff is well, founded she would be entitled to an injunction to restrain the first defendant from executing the decree she has obtained. Consequently, a suit for a declaratory decree, pure and simple, would not be maintainable. The learned Vakil for the plaintiff-respondent, however, has farther contended that the suit cannot be treated as an inter pleader suit, because his client does not profess to espouse the cause of the first defendant. She espouses the cause of the second defendant and is confident that the first defendant has improperly obtained a decree for rent against her. On this ground he urges that the plaint ought not to be treated as a plaint in an interpleader suit because the essence of a suit of that description is that the plaintiff professes to be in the position of a stakeholder and merely invites the Court to determine the controversy between the contesting defendants. We are of opinion that there is no substance in this contention. In order to determine the nature of the suit, we must examine its true scope and there can be no room for controversy that the real object of the plaintiff, which is manifest on the face of the plaint, is to have it determined as between the first and the second defendants that the one is not but the other is her landlord. We are of opinion that the suit as framed is not maintainable.
4. The second objection taken by the learned Vakil for the appellant is that, even if the suit be treated as maintainable, the question in controversy is clearly barred by the doctrine of res judicata. In support of this objection reliance has been placed upon the cases of Ekabbar v. Hara Bewah 8 Ind. Cas. 660 : 13 C.L.J. 1 : 15 C.W.N. 335; Hara Chandra Bairagi v. Bipin Behary Das 6 Ind. Cas. 860 : 13 C.L.J. 38 and Panchu Mandal v. Chandra Kant Saha 12 Ind. Cas. 9 : 14 C.L.J. 220. It has been contended, on the other hand, that the question is not res judicata, because the previous suit was one for rent while the present litigation has been instituted for the determination of the question of title, and, therefore, in view of the decision of this Court in the cases of Nityanunda Barkar v. Ram Narain Das 6 C.W.N. 66; Sahadeb Dhali v. Ram Rudra Haldar 10 C.W.N. 820 and Dwarka Nath Roy v. Ram Chand Aich 26 C. 428 : 3 C.W.N. 266 there is no room for the application of the doctrine of res judicata. In our opinion, this argument is obviously fallacious. In the suit for rent, the present plaintiff as defendant contended that the relationship of landlord and tenant had not existed between the parties. She further alleged that she held the land as tenant of the present second defendant. This defence was investigated and overruled on the merits. Upon the evidence, the Court came to the conclusion that the then defendant was the tenant of the disputed land and held under the then plaintiff. That was a decision upon a question directly and substantially in issue between the parties. In fact, that was the only question which required determination in that case. The adjudication was by a Court of competent jurisdiction Bidhumukhi v. Jitendra 10 C.L.J. 527 : 4 Ind. Cas. 442. Under these circumstances, it is difficult to appreciate how upon principle it can be seriously contended that this particular decision is not res judicata between the parties Kasiswar v. Mohendra 25 C. 136. In the present suit, the plaintiff does not allege that the relationship of landlord and tenant which was found to exist between the parties to that litigation has terminated since judgment was given in that case; consequently, it must be assumed that the relationship continues. It is clearly not open to the plaintiff to seek for a declaration that she is not the tenant of the first defendant. If she obtains such a declaration, its effect would be practically to nullify the decision given in the previous litigation. It may be conceded that there are expressions in the judgment of this Court in the case of Nityanunda Sarkar v. Ram Narain Das 6 C.W.N. 66 which may lend some apparent support to the contention of the respondent. But, as was fully explained by this Court in the case of Panchu Mandal v. Chandra Kant Saha 12 Ind. Cas. 9 : 14 C.L.J. 220 the case of Nityanund Sarkar v. Ram Narain Das 6 C.W.N. 66 must be taken to have been decided upon its special facts and the learned Judges could not have laid down any general proposition of law inconsistent with the principle recognised by their Lordships of the Judicial Committee in the case of Radha Madhub Holdar v. Monohur Mookerji 15 C. 756 : 15 I.A. 97. The case of Sahadeb Dhali v. Ram Rudra Haldar 10 C.W.N. 820 was of an entirely different character, and there is nothing in the judgment of this Court in that case which lends any support to the contention of the respondent. Much reliance, however, was placed upon the decision of the Full Bench in the case of Dwarka Nath Roy v. Ram Chand Aich 26 C. 428 : 3 C.W.N. 266 there is, in our opinion, nothing in any of the judgments delivered by the learned Judges is that case which tends to support in the slightest degree the contention of the respondent. In that case, the plaintiff had brought a suit for rent against the defendant upon the allegation that he was his tenant. The defendant denied the tenancy and contended that he held the land under another person. This defence was successful and the suit for rent was dismissed. The plaintiff then sued for establishment of his title against the third party (the alleged landlord of the defendant in the suit for rent). He also joined the tenant as defendant and prayed in the alternative that a decree for ejectment might be made against the tenant or a decree for damages for use and occupation under Section 157 of the Bengal Tenancy Act. The Court held that the decision in the suit for rent did not operate as res judicata as between the plaintiff and the third party set up by the defendant. As between the plaintiff and the tenant who had been sued for rent unsuccessfully, the matter was treated as res judicata. But that was on the, ground that as the tenant had successfully proved that he did not hold under the plaintiff he was liable either to be ejected or to pay damages for use and occupation. It is further worthy of note that one of the learned Judges pointed out that, according to the decision of this Court in the case of Gopal Das v. Gopi Nath 12 C.L.R. 38 the matter would be res judicata as between the parties to the suit for rent. It is thus clear upon an examination of the judgments in the case of Dwarka Nath Roy v. Ram Chand Aich 26 C. 428 : 3 C.W.N. 266 that the contention of the present respondent cannot possibly prevail. On the other hand, the cases of Ekabbar Sheikh v. Hara Bewah 8 Ind. Cas. 660 : 13 C.L.J. 1 : 15 C.W.N. 335 and Hara Chandra Bairagi v. Bipin Behary 6 Ind. Cas. 860 : 13 C.L.J. 38 conclusively establish that a decision in a suit for rent may operate as res judicata. In fact, if the contrary view were maintained and we found ourselves obliged to accede to the contention of the respondent, every suit for rent in which the defence of the tenant defendant has been overruled, would be followed by an action of the present description, namely, for a declaration that the tenant did not hold under the successful plaintiff but under a stranger to the litigation.
5. The result, therefore, is that both the contentions of the appellant must prevail. The decree of the Sub-Judge is discharged and the suit dismissed with coats in all the Courts.