Neamatulla v. Bajiulla

1. The plaintiff alleges that he is an occupancy-raiyat and that defendant 1 is his under-raiyat. In 1905 the plaintiff sued this defendant in ejectment. The defendant pleaded that plaintiff was not the 16-annas owner of the holding and set up the right of one Halu Sheikh as the plaintiff's co-sharer. One of the issues in that ejectment suit was. Are the plaintiffs sole landlords in respect to the land in suit; if not, can they eject the defendants? The Court found that she plaintiff was not the sole landlord and dismissed the suit. The plaintiffs now sue the heirs of Halu Sheikh and defendant 1 for declaration of their 16 annas title to the holding, and they also 29 for khas possession alleging that defendant 1 has forfeited his tenancy by his denial of the plaintiffs' title in the ejectment suit. The Munsif held, firstly, that there was no forfeiture, and secondly, that the suit was barred by res judicata. On appeal before the District Judge the suit was remanded, the Judge being of opinion that the previous decision in the ejectment suit did not operate as judicata and that there should be a re-trial of the issue relating to forfeiture.

2. Against this decree defendant 1 prefers the present second appeal. With regard to the question of forfeiture we think it is settled law that where a tenant does not deny the whole title of his landlord bub sots up the right of a third party co-sharer, there can be no forfeiture. The case of Brimati Mallilka Dassi v. Makham Lal Chowdhury . 1905 9 C.W.N 928. is authority for this proposition. The learned District; Judge was, therefore, wrong in ordering a re-trial of this issue. The question of res judicata is a more difficult one. As between defendant 1 and the plaintiffs the question whether the plaintiffs were the sole landlords of the holding was directly and substantially in issue in the ejectment; suit and under Section 11 of the CPC, a decision on that issue must be held to be res judicata an between these parties. In this suit, therefore, the plaintiffs are not entitled to a defendant 1 that they are 16-annas owners of the holding. Therefore, so far as defendant 1 is concerned he must be dismissed from the suit.

3. There remains the question whether, as against defendants 2 and 3, the alleged co-sharers of the plaintiffs, the plaintiffs are entitled to a declaratory decree in respect of their share. We think S. 11 does not stand in their way for this purpose, and it is within the discretion of the Court to give the declaration such as the plaintiffs require, if the Court is satisfied that it should do so under Section 42 of the Specific Relief Act. We think, therefor, that the remand order should stand and the case go back for disposal of the tissues affecting defendants 2 and 3.

4. Defendant 1 will get his costs in this Court. The costs of the remaining Courts will abide the result. We assess the hearing fee in this Court at two gold mohurs.

V.B/R.K

5. Order varied.