Kaipath Moidin Kutti and Others vs Karlvarakkandi Parambil Veshala Puthiya Purayil Mannan

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. Rajah Eralpad 40 Ind. Cas. 841 : 40 M. 1111 : 32 M.L.J. 442 : 21 M.L.T. 401. 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 lights, which included the lease-holder''s rights, and was put in possession and thus became a 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

rent, and the relationship of landlord and tenant was not disputed. The learned 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

nor 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 ascertain 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 9 Bom. L R. 1020 has been cited where a dictum of the Judicial

Committee is quoted:

a right which a litigant possesses without knowing or even 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 Venkatachalapati v. Krishna 13 M. 287 Natesa Gramani v.

Venkatarama Reddi 30 M. 510 and Bayyan Naidu v. Suryanarayana 17 Ind Cas. 445 : 37 M. 70 : 12 M.L.T. 500 : 23 M.L.J. 543 : (1913)

M.W.N. 1 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 the subsequent Faslis. Reference has been made to the case in Bayyan Naidu v. Suryanarayana 17

Ind Cas. 445 : 37 M. 70 : 12 M.L.T. 500 : 23 M.L.J. 543 : (1913) M.W.N. 1 where Sundara Ayyar, J. has discussed this point. Accordingly the

restriction to which the proposition is subjected in the case in Gnanada Govinda Chaudhuri v. Nalim Bala Debt 94 Ind. Cas. 837 : 30 C.W.N. 593

: 43 C.L.J. 146; A.I.R.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 suite 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 instead 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.