Fazilat Hussain and Others vs Ramkhelawan Koeri

James, J.—Ramkhelawan Koeri in 1912 purchased a house in Sasaram from Bimal Teli by a deed, whereby Bimal Teli described himself as the proprietor of the house and land, by which the title in the house and in the milkiat was transferred to Ramkhelawan. In 1925 Sheikh Fazilat Hussain sued Ramkhelawan for arrears of rent claiming the sum of Rs. 28-6.6. It appears that the suit was at first instituted in the Small Cause Court, but this point is not clear. The suit was tried as a regular suit in which the defendant set up his title and the parties went to trial on the issues. Does the disputed house belong to the plaintiffs and is the defendant a tenant of the plaintiff? On this point the decision was in favour of the defendant; but the District Judge in dismissing the appeal pointed out that he was not deciding the question of title to the site on which the house stood. In 1929, Sheikh Fazilat Hussain sued Ramkhelawan in ejectment.

The Munsif of Sasaram, misunderstanding the plea of the defendant, thought that he had admitted the plaintiff''s title to the site on which the house stood, and considering that this threw upon the defendant the burden of proving the transaction by which his vendor''s ancestor had obtained title in the house, be decreed the plaintiff''s suit on the ground that the defendant had failed to indicate how he had come into possession of this house standing on another man''s land. On appeal, the learned Subordinate Judge pointed out that the defendant had never admitted the plaintiff''s title to the land on which the house stood. The Subordinate Judge found that the plaintiff had failed to prove his title to this land; and he considered that on the question of the plaintiff''s title to the house the matter should be regarded as res judicata, having been determined in the litigation of 1925. He therefore dismissed the suit. The plaintiff comes in second appeal from that decision.

The learned advocate for the appellants argues that the finding that the plaintiff had no right in the house in the suit of 1925, cannot be treated as res judicata, because the suit itself was merely a suit for arrears of rent and all that could be decided in that suit was whether rent was actually due as claimed by the plaintiff.

He sites a number of decisions in which it has been held that a finding of fact on a question of title raised in a rent suit instituted under the Bengal Tenancy Act, will not operate as res judicata in a subsequent suit, because in the rent suit the question of title was not directly and substantially in issue, the only question between the parties being whether the rent was due for the period claimed. In Baldeo Pershad v. Narain Halwai AIR 1916 All 26 it was held that an incidental determination of an issue of title in a suit for rent of a nature cognizable in a Court of Small Causes, did not finally estop the parties to such suit from raising the same issue in a suit brought to try the title. In that case the previous suit had been for rent of a house, which was decreed in full with an incidental finding that the southern section of the house was not included in the portion for which the rent was paid. It was held that this question of title arose only incidentally and not directly.

In the present case the parties had already gone to trial on the issue. Does the disputed house belong to the plaintiff? and after they had entered into evidence on this point, it was decided against them. That suit was one which should ordinarily have been tried in the Small Cause Court; and although the point is not clear it would appear to be probable that it was tried as a regular suit in order that this question of title might be decided between the parties. I consider that the learned Subordinate Judge''s view of the matter was correct; but even if we limit the effect of the findings in that case to a finding that the disputed house did not belong to the plaintiff in 1925, and that the relationship of landlord and tenant did not then exist, it is clear that there is nothing in the presentation of his case by the plaintiff in this suit or in his evidence which could be held to be consistent with his not being proprietor in 1925.

If he was not the proprietor when ho brought the suit in 1925, and if the relationship of landlord and tenant did not then exist, the case of the plaintiff as set forth in the present suit and the evidence on which it is supported cannot be accepted, because his case is that he is and has always been proprietor of the house; and no explanation has been given and no attempt has been made to show how, if he had been proprietor before, he had ceased to be proprietor in 1925.

The Munsif in the present litigation based his finding, as I have said, on a misappreciation of the case of the defendant; but as soon as the Subordinate Judge found that the plaintiff was not the proprietor of the site on which the house stood, the plaintiff''s case was bound to fail for the reasons which I have stated. I therefore find no ground to warrant interference in this case and I must dismiss this appeal with costs.