R.C. Mitter, J.
1. This appeal on behalf of the plaintiff is in a suit for possession of a piece of land admittedly in the possession of the defendants. The plaintiff's case is that the defendants were their tenants but they denied the relationship of landlord and tenant in two suits, one instituted in the year 1920 and the other in the year 1929 and that by reason of the denials being given effect to in the said suits, there has been a forfeiture of the tenancy. In the prayer portion, the plaintiff asked for possession on declaration of their title. The Court of first instance after overruling the plea of res judicata urged by the defendants found in favour of the plaintiffs on the question of their title and also on the question of limitation and decreed the suit. On an appeal by the defendants the Subordinate Judge has held that the plaintiffs' suit is barred by res judicata. The only question is whether the decision of the Subordinate Judge on the question of res judicata is correct or not. The point arises on the following facts:
2. The plaintiffs served a notice to quit on the defendants on 24th Bhadra 1326, requiring them to vacate the lands on the expiry of the month of Chaitra 1326 B.S. This notice was served on the footing that the defendants were ticca tenants of the plaintiffs. The defendants did not act in terms of the notice to quit. The result was that the plaintiffs instituted the suit No. 813 of 1920 for ejectment on the ground that the tenancy of the defendants under them had been determined by the aforesaid notice to quit. In that case the defendants pleaded that there was no relationship of landlord and tenant between them and the plaintiffs, the lands or a good part thereof being their rent free debuttar lands. The Court in the said suit wont into the question as to whether there was relationship of landlord and tenant between the parties. A perusal of the judgments delivered by the trial Court, the lower appellate Court and this Court in that suit would indicate that the only question that was decided was whether there was relationship of landlord and tenant between the parties. The Court held that the plaintiffs had failed to prove such relationship and that the said suit as framed could not succeed because the defendants were not the tenants of the plaintiffs at the material point of time, that is to say, just before and during the period of the notice. The plaintiffs kept quiet for some years after they had got the adverse decision in that case. In the year 1929 they instituted a suit for rent against the defendants for self-same lands. The suit was numbered M.S. 64 of 1929. It was not their case then, nor is it their case now that there was fresh letting after 1910 to the defendants by them. In that suit also the plea that was taken by the defendants was that no decree for rent could be passed against them inasmuch as there was no relationship of landlord and tenant. The plaintiffs in that suit also failed, as they were bound to, but could not prove the relationship of landlord and tenant. The result was that the rent suit was dismissed. The plaintiffs then on 26th September 1929 instituted the suit out of which the present appeal arises. In the plaint they state that the defendants were their tenants but the tenancy had been determined by reason of the denial of the defendants, as to relationship of landlord and tenant having been given effect to by the final decision of the High Court passed in the appeal against the decree in suit No. 813 of 1920, and by the decision in M.S. No. 64 of 1929. They based their cause of action on the forfeiture of the tenancy on two dates, namely, the date of the High Court Judgment as aforesaid and the date of the judgment in M.S. No. 64 of 1929; in the prayer portion, as I have said, they prayed for possession on declaration of title. The Sub-Judge has held that the judgments pronounced in Suit No. 813 of 1920 operated as res judicata and that the plaintiffs are not entitled to succeed. In my judgment the Sub-Judge is quite wrong in holding that the judgment passed in Suit No. 813 of 1920 and No. 64 of 1929 conclude the case of the plaintiffs.
3. The judgments passed therein are no doubt res judicata, but res judicata on a very limited point, viz., on the point that there was no relationship of landlord and tenant between the plaintiffs and defendants at the time when the notice to quit was served, that is to say, in or about Bhadra 1326, or for the period in claim in suit No. 64 of 1929. It is not res judicata on the point of the plaintiffs' title or on the point as to whether there was relationship of landlord and tenant between the plaintiffs and defendant at a time prior to the date when the notice was served on the defendants, that is to say, prior to Bhadra 1326. As I have already stated it is not the case of the plaintiffs that any relationship of landlord and tenant was created between the parties at any period subsequent to the decision in Suit No. 813 of 1920. In fact, the lower appellate Court has found that the Suit No. 64 of 1929 was a baseless suit, a mere device to establish, if possible, the relationship of landlord and tenant between the parties.
4. The view that I take in this suit is this that the Subordinate Judge has given a much extended scope to the judgments pronounced in Suit No. 813 of 1920. I have indicated above the true scope of those judgments. Those decisions cannot dispose of the plaintiff's suit. The question of the plaintiff's title will have to be gone into. The question of limitation will have to be gone into before the plaintiffs' suit can be disposed of. In deciding the question of limitation the Subordinate Judge would have to take into consideration as to whether there was relationship of the landlord and tenant between the plaintiff and the defendants at a time prior to the date when the notice was served on the defendants, that is to say, prior to Bhadra 1326. If he holds that there was relationship of landlord and tenant it may be possible to invoke Article 143, Lim. Act. If on the evidence it is found that there was never at any time relationship of landlord and the tenant between the parties, Article 143 would not apply but in order to succeed the plaintiffs may have to fall back upon Article 142, or it may be that the defendants may have to fall back upon Article 144, Lim. Act. Inasmuch as these questions have not been considered, I am not expressing any opinion on the question of limitation, but I am only indicating that these may possibly be the questions which will arise and which will have to be considered before the plaintiffs' suit can be disposed of.
5. Mr. Hiralal Chakravarty in his reply argued that on the plaint as it stands the plaintiffs cannot succeed. Whether they can succeed or not on the plaint will have to be considered and if the plaintiffs are advised to amend the plaint an application for amendment, if made by them, will have to be considered. But what I am pointing out is that the decision of the Subordinate Judge is entirely incorrect. I accordingly set aside the judgment and the decree of the Subordinate Judge and remand the case to the lower appellate Court in order that the appeal before it may be disposed of in accordance with law. Costs will abide the result.