1. The suit out of which this appeal arises related to a piece of land about 10 cottahs in area within the town of Pabna. This land was leased by the landlord to the predecessor in interest of the defendant by a kabuliat, dated the 29th Magh 1291. The defendant, in which term we include his predecessor in interest, allowed the father of the plaintiff to live on the land, the latter agreeing to work for the defendant as Muktear in the criminal courts and to pay the rent due to the superior landlord. While the father of the plaintiff was in possession of the land under this license he obtained a lease of it from the superior landlord. It is not disputed that the rights conferred by this lease were intermediate between the rights of the superior landlord and those of the defendant, and if the interest of the defendant was that of a tenant-at-will, the father of the plaintiff, after acquiring the second lease, had power to eject him. After the father of the plaintiff died two suits were brought by the defendant against the present plaintiff for ejectment. To the first one we need not further refer. The second one was defended by the plaintiff but was ultimately decreed and it was ordered that the present defendant was entitled to Khas Possession. After that the present suit was brought. The plaintiff gave the defendant notice of the determination of his lease, apparently under Section 111 of the Transfer of Property Act, and after the period of notice had expired he brought this suit for a declaration that the rights of the defendant had terminated. He dated his cause of action from the decree which the defendant had obtained against him and he asked also for an injunction restraining the defendant from executing that decree. The lower appellate Court has decreed the suit and the defendant appeals.
2. A number of points have been taken in argument which we will deal with seriatim. The first point is that the suit is barred by Section 13 of the former Code of Civil Procedure. It appears that in the former suit between the parties the present plaintiff pleaded his title under the lease in his father's favour, and also that he had terminated the defendant's tenancy by a notice, the period of which had expired before the institution of the suit. The judgment in that case has been printed and it is perfectly clear from it that this plea was never considered. The question, therefore, whether the plaintiff's title is good and whether the defendant's title has been terminated by the notice served upon him by the plaintiff can not be said to have been heard and finally decided in specific terms in the former suit.
3. Reliance, however, is placed on explanation II of Section 13 of the Code which lays down that a matter which ought to have been a ground of defence in the former suit must be deemed to have been directly and substantially in issue. It is clear that if this explanation applies the fact that there was no final decision of the point in specific terms is not fatal to the plea of res-judicata. A matter which ought to be raised, but which as a matter of fact, is not raised in a suit cannot be decided in specific terms in that suit. But this fact cannot be fatal to the plea of res-judicata, for in that case it is obvious that explanation II would be meaningless. We must take it, therefore, that if the effect of the decision in a former suit is necessarily inconsistent with the de-fence that ought to have been raised but has not been raised that defence must under Section 13 be deemed to have been finally decided against the person who ought to have raised it. But these considerations do not appear to apply to the circumstances of the present case. The former suit was decreed it is clear that if the plea which the plaintiff then put forward, namely, that he was entitled to the land and that he had terminated the defendant's interest by due notice, is regarded as having been finally decided at all it must be deemed to have been decided against him. The result of the decision was that for some reason or other the notice which was given before the institution of the former suit was ineffectual and the present plaintiff was not entitled to retain his possession of the land in suit in that case by reason of the fact that he had given to the present defendant a valid notice for the termination of the lease. That being so, how can this decision be regarded as res-judicata in the present case which is brought on the allegation that the plaintiff has given a second notice to the defendant which has been found by the Courts below to be valid in law. The plaintiff's case, as it has been laid before us now, is that for some reason or other service of notice in the former case was not effectual. This may have been due to the fact that it was given by a benamidar or for some other reason. We have no materials before us to show why it was unsuccessful, but if the decision, of the Court in the former suit is regarded as constructively deciding the point it must be regarded as deciding it against the present plaintiff, that is to say, that the notice was ineffectual. If the point had been decided the other way it is clear that the former suit would have been dismissed. This being so the plea of res-judicata must necessarily fail.
4. The second point taken is that the plaintiff being a confidential agent of the defendant was not entitled to take this second lease behind the defendant's back and must be regarded as a trustee for the defendant's benefit. Reference has been made to section. 90 of the Trusts Act, 1882, and although this enactment is not in force in the Pabna District, the section quoted may perhaps be taken as an accurate statement of the equitable rules which this Court would administer in a case of this nature. It is laid down in that section that where a tenant for life, by availing himself of his position as such, gets some advantage in derogation of the rights of the other persons interested, he holds that advantage for the benefit of the persons so interested. But it is difficult to See in this case how the plaintiff was either benefited by his position in obtaining the second lease, or in the second place how his action in obtaining this lease has derogated from the rights of the defendant. No doubt it would have been more honourable for the plaintiff to have consulted his employer before taking the second lease. But at the same time he does not appear to have gained a more favourable opportunity for obtaining this lease by the defendant's allowing him to live on the land than was possessed by any other resident of Pabna. Any of the neighbours could probably have obtained this lease, and it is not easy to see how he by reason of his position obtained any advantage over his neighbours in this respect. When he, obtained it there was no special relation between him and the superior landlord, such as might induce the latter to give him preference. Nor does it appear to us that the rights of the defendant have been in any way derogated from. If before the lease he was a tenant-at-will under the superior landlord, he is now a tenant-at-will under the plaintiff. If he had a permanent lease before, he has a permanent lease still. His position seems to be unchanged, and we cannot say that his rights have in any way been derogated from.
5. The case of the renewal of a lease is not precisely similar. Where a tenant for life has a lease-hold interest it has been held that if he obtains a renewal of the lease that will enure for the benefit of the reversioner. But it is clear that a lessee of property does by his position obtain an advantage in securing renewal. In many leases there is a covenant for renewal, and even in a case where there is no such covenant yet the landlord would naturally prefer to continue the lease to a lessee with whom he is already in contractual relations. In such a case the lessee in possession might well be regarded as securing by his position a special advantage in obtaining the renewal of the lease. But in a case like the present where the person in possession under a lease from the tenant obtains a lease of a superior interest and of a different character, the principle to which we have referred seems to have no application.
6. The third point taken is that the learned Subordinate Judge is wrong in holding that the defendant's Kabulait is not a lease, Having regard to Section 4 of Act III of 1885, we are disposed to agree with this contention. But it does not appear to us necessary to decide the point in the view we take of the lease itself.
7. The fourth point taken relates to the nature of the tenancy created by the defendant's Kabuliat. By that contract it was agreed that the defendant should enjoy and possess the land after building a bashabari upon it No period is specified in the lease, and it is argued on the strength decision in the case of Juhooree Lal Sahoo v. Mr. H. Dear 23W.R., 399 that as the land was given to the defendant for the purpose of building a dwelling house and no period was fixed for the tenancy, the tenure could not be taken away from the lessee's representatives so long as they continue to pay rent. To accept this contention would, in our opinion, be tantamount to holding that the lease in question is a permanent lease and if we are to follow the decision in its literal terms the effect on property in towns might be very grave. Most leases of land in town must be leases for building purposes, and to hold that all leases for such purposes are permanent leases would be very dangerous. There are circumstances in this lease which clearly indicate, in our opinion, that no permanent lease was intended. The lessee was not allowed to erect masonry building on to cut down trees. If the lease was a permanent lease to the defendant granted for the purpose of his building a dwelling house it is difficult to understand why the landlord should object to his living in a masonry house. Section 106 of the Transfer of Property Act lays down that in the absence of a contract to the contrary a lease of immoveable property for other than agricultural or manufacturing purposes shall be deemed to be a lease from month to month terminable on a certain amount of notice. We cannot regard the facts that this lease was granted for the purpose of building a bashabari and that no period was specified in it as making it a 'contract to the contrary' within the meaning of Section 106, and we feel some difficulty in holding that the decision quoted is since the enactment of Section 106 a correct Statement of the law.
8. The last point taken is that there is no cause of action in the suit. The cause of action as we have observed is dated from the decree in the former suit. It is admitted by the learned pleader for the respondent that this was a mistake. It appears that the decree at the time when it was granted, which was before the expiration of the period given in the notice on which this suit is based, was a perfectly good decree; and it is quite clear that the decree by itself furnishes no cause of action for the present suit. But the fact that notice was given to the defendant is clearly stated in the pleadings, and the second prayer in the plaint is that the defendant's tenancy should be declared to have expired. It is clear, therefore, that the cause of action should have been dated from the expiration of the period given in the notice on which the suit is based; but the fact that the cause of action has been erroneously described does not render it necessary, in our opinion, to dismiss the suit.
9. The result is that in our opinion the decision of the Subordinate Judge should be supported and we therefore dismiss the appeal with costs.