(Kaipath) Modin Kutti and Others vs Karuvadakkandi Parambil Veshala Puthiya Purayil Mannan

Curgenven, J.—This petition raises two questions : (1) whether the defendant is legally liable to pay rent to the plaintiff and (2) whether the

matter has been so decided as to constitute res judicata between them. On the first point the learned District Munsif is right in following the Full

Bench decision in Thethalan v. Eralpod Rajah 1918 Mad. 425. The plaintiff''s brother is the original usufructuary mortgagee who had as such

leased the property back to the mortgagor, Koran Nambiar. Kelu Nambiar took a usufructuary mortgage of Koran Nambiar''s rights, which

included the leaseholder''s rights, and was put in possession and thus became usufructuary mortgagee of the lessee. The fact that the usufructuary

mortgage was also of the equity of redemption does not I think affect that position. The defendant who bought Kelu Nambiar''s'' rights in Court

auction occupied the same position as mortgagee of the lessee and it has been held in the Full Bench case, above referred to that there is no privity

of contract between such a mortgagee and the lessor, who is the present plaintiff.

The other point relates to the question of res judicata. In two previous small cause suits the plaintiff obtained decrees against the defendant for

rant, and the relationship of landlord and tenant was not disputed. The learned 1 District Munsif has held that these decrees did not constitute res

judicata for two reasons. In the first place, the defendant was not at the time aware of or was in possession of the document which has enabled him

now to dispute the claim. But it does not appear why the defendant who had bought this property in Court auction did not, when the claim was

made against him, investigate the title to as certain whether it was a valid one, nor does it appear that any of the materials upon which he might have

resisted it were not available to him. The case in Manik Bai v. Virchand (1907) 9 Bom. L.B. 1020, has been cited, where a dictum of the Judicial

Committee is quoted:

A right which a litigant possesses without knowing or ever having known that he possesses it can hardly be regarded as a portion of his claim.

It was held that in the circumstances of the case and having regard to certain findings the plaintiff''s claim was not res judicata on the ground that

at the time of the previous suits the defendant was not aware of the claims put forward. I do not think that the question whether the defendant might

not with diligence have obtained possession of all the necessary facts was considered in that case. The further question has been raised whether a

decision in a suit for rent relating to a certain period will be res judicata in a subsequent suit for rent for a later period. I think it is now fairly well

settled for this Court by Venkatachalapathi v. Krishna (1890) 13 Mad. 287, Natesa Gramani v. Venkatarama Reddi (1907) 30 Mad. 510 and

Bayyan Naidu v. Suryanarayana 1911 Mad. 399, that where the matter in dispute is not peculiar to the year or fasli in respect of which the claim

was made in the earlier suit it will be res judicata in respect of the claim in respect of subsequent faslis. Reference has been made to the case in

Bayyan Naidu v. Suryanarayana 1911 Mad. 399 at p. 97 (of 37 Mad.) where Sundara Ayyar, J., has discussed this point. Accordingly the

restriction to which the proposition is subjected in the case in Gnauada Govinda Chudhuri v. Nalini Bala Debl 1926 Cal. 650 cannot, I think, be

accepted as representing the law of this presidency. At the same time in the present case there are two circumstances which weigh strongly with

me in considering whether I should interfere on the technical ground that the matter is res judicata. In the first place the previous suits were small

cause in nature and no issues were framed and it is very doubtful whether the question of privity of contract can be said to have been directly or

substantially in issue and not only incidentally decided. A still more serious objection is that the previous suits were undoubtedly wrongly decided.

The defendant was in law not in the position of a lessee to the plaintiff and not liable to pay rent.

On the other hand, the true lessee was Koran Nambiar and it seems that in. stead of perpetuating the mistake the plaintiff should try to rectify

the position by obtaining rent from him. It may not be a general legal principle, as the learned District Munsif has assumed that no matter can be res

judicata on a question of law. But I think that in the case of an application for revision I can fairly take into consideration whether the later or the

earlier decision is from the legal point of view the correct one. In this case the later decision is undoubtedly correct. I do not think that there are

sufficient grounds for interfering in revision. I therefore dismiss the Civil Revision Petition and in the circumstances I make no order as to costs.