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Bhabatarini Devi Vs. Roy Kiran Chandra Roy Bahadur and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.1026
AppellantBhabatarini Devi
RespondentRoy Kiran Chandra Roy Bahadur and ors.
Cases ReferredRun Bahadur Singh v. Locho Koer
Excerpt:
civil procedure code (act v of 1908), section 11 - rent suit, finding arrived in--subsequent suit for rent not triable by court which decided previous suit--res judicata--appeal, second--finding of fact--evidence ignored--interference by high court. - .....suspension of rent. as to the truth of their allegation, they refer to the decision in a previous suit for rent in respect of the same tenancy. that suit was for a shorter period and the amount claimed was less than rs. 1,000 and the suit was tried and determined by a munsif whose pecuniary jurisdiction did not go beyond rs. 1,000. that officer, therefore, would not have been competent to try these two suits and on that account the courts below have held that a decision in the former suit does not operate as res judicata. after rejecting this argument they have come to the conclusion that the plaintiffs have not dispossessed the defendants from any part of the tenancy.3. on behalf of the defendants, it has been urged once more that the principle of res judicata does apply to the.....
Judgment:

Hugh Walmsley, J.

1. These two appeals arise from two rent suits. The suits relate to two successive periods, one from Baisakh 1319 to Pous 1322, and the other from Magh 1322 to the end of 1325. The annual rent is Rs. 345, so with the addition of a claim for damages at the rate of 25 per centum the claim in each suit is well above Rs. 1,000.

2. The defendant-appellant's case is that the plaintiff-landlord has dispossessed them from three of the plots comprised in the tenancy and leased those three plots to another party and on that account they say that they are entitled to a suspension of rent. As to the truth of their allegation, they refer to the decision in a previous suit for rent in respect of the same tenancy. That suit was for a shorter period and the amount claimed was less than Rs. 1,000 and the suit was tried and determined by a Munsif whose pecuniary jurisdiction did not go beyond Rs. 1,000. That officer, therefore, would not have been competent to try these two suits and on that account the Courts below have held that a decision in the former suit does not operate as res judicata. After rejecting this argument they have come to the conclusion that the plaintiffs have not dispossessed the defendants from any part of the tenancy.

3. On behalf of the defendants, it has been urged once more that the principle of res judicata does apply to the question whether the tenants are entitled to a suspension of rent. It is conceded that the fact that the Munsif who tried the earlier suit would not have been competent to try the present; suits takes these suits out of the provisions of Section 11 of the C.P.C., but it is said that the statement of the law in that section is hot exhaustive and reference is made to remarks by their Lordships of the Privy Council; in the cases of George Henry Hook v. Administrator General of Bengal 60 Ind. Cas. 631 : 25 C.W.N. 915 : 19 A.L.J. 366 : 40 M.L.J. 423 : 29 M.L.T. 336 : (1921) M.W.N. 313, 33 C.L.J. 405 : 3 U.P.L.R. (P.C.) 17 : 23 Bom. L.R. 648 : 14 L.W. 221 : 48 C. 499 : 48 I.A. 187 (P.C.) and Ramachandra Rao v. Ramachandra Rao 67 Ind. Cas. 408 : 26 C.W.N. 713 : 30 M.L.T. 154 : 45 M. 320 : 35 C.L.J. 545 : 16 L.W. 1 : (1922) M.W.N. 359 : 20 A.L.J. 684 : 43 M.L.J. 78 : 24 Bom. L.R. 963 : (1922) A.I.R. (P.C.) 80 : 49 I.A. 129 (P.C.). It is not necessary to examine those decisions at length or to refer to the earlier decision mentioned in the former. The extension of the doctrine to which they allude will not assist the appellants in these suits. In fact the passage in the second judgment on which reliance is placed begins, with these words 'it is not competent for the Court, in the case of the same question arising between the same parties, to review a previous decision no longer open to appeal, given by another Court having jurisdiction to try the second case.' I have no hesitation in holding that these two decisions do not modify in any way the effect of the decision in the case of Run Bahadur Singh v. Locho Koer 11 C. 301 at pp. 308, 309 : 12 I.A. 23 : 4 Sar. P.C. J. 602 : 9 Ind. Jur. 202 : 5 Ind. Dec. (N.S.) 960 (P.C.).

4. With this argument decided against the appellant, it is said for the respondent that the appeal is concluded by the findings of fact. I cannot accept this view, for the reason that the decision in the previous suit must be regarded as a valuable piece of evidence, and must receive its due weight. It is unfortunate that the argument in the lower Appellate Court was directed only to showing that the decision operated as res judicata, for this misled the Judge into ignoring it altogether. The position, therefore, is this. It is now an admitted fact that the three plots are comprised in the village, demised to the defendants, that they are not in the possession of the defendants and that they are in possession of the tenants of an adjoining village who pay rent for them to the plaintiffs. Those are the facts admitted now. In the earlier suit, however, the plaintiffs maintained that the plots did not form part of the defendants' tenancy at all, and the decision, in which the plaintiffs now acquiesce, was that they are part of the defendants tenancy. The learned Judge refers to the inconsistent attitude of the plaintiffs and even to their wilful misrepresentation, and quotes a passage from the judgment of this Court, and yet he proceeds to find that the dispossession was not by the plaintiffs. If he had treated the decision in the former suit as a valuable piece of evidence and examined the other evidence to see whether it displaced the finding in the earlier suit, his conclusion might have been different.

5. On the other hand I wish to point out that the learned Judge appears to be in!' error when he says that the persons in possession are relatives of the plaintiffs' bargadar. This, however, may be nothing more than a slip of the pen, to judge from the argument based on it.

6. I think it is not possible for us to decide the question we must send the cases back to the lower Appellate Court for that Court to hear the appeals afresh in the light of what I have said and to decide them in accordance with law. The costs of the hearing in this Court will abide the result.

Mukerji, J.

7. I agree.


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