Kali Prosad Tewari vs Mahabir Tewari

Das, J.—This appeal arises out of a suit brought by the appellant for ejectment of the respondents from the property which is the subject-matter of dispute between them. In 1910 the present appellant brought a rent sail against the defendants, which suit the defendants resisted on the ground that there was no relationship of landlord and tenant between them. The Court gave effect to the defendants'' plea and dismissed the plaintiff''s suit for rent Thereupon the appellant has brought his present suit for ejectment of the defendants, his ground being that the tenants having taken the plea that there was no relationship of landlord and tenant, between them and him and that plea having been given effect to by a Court of competent jurisdiction, be is now entitled to ask the Court to eject the defendants.

The lower Appellate Court has come to the conclusion, firstly, that the disputed land lies within the Zamindari of the plaintiff, secondly, that there was a previous rent suit between the plaintiff and the defendants in which the defendants successfully pleaded that they were not the tenants of the plaintiff. But the lower Appellate Court dismissed the plaintiff''s suit mainly, as I understand the judgment, on two grounds, firstly, because it was not shown that the plaintiff inducted the defendants on the land and secondly, because it was not shown that the consent decree by which the plaintiff established his title to the land was not passed in the presence of the defendants.

In my view the circumstances relied upon by the lower Appellate Court do not help the respondents, because it does not matter whether the respondents were parties to the consent decree or not so long as the plaintiff has established his title to the land. The appellant, having established his title to the land, was entitled to rent from the respondents if they desired to stay on the land. They cannot obviously stay on the land and yet refuse to pay rent to the appellant. Secondly, it is no doubt true that the appellant did not induct the respondents on the land, but I do not see bow that affects the question whether the appellant as landlord is now entitled to eject the respondents who have successfully established in a Court of law that they are not the tenants of the appellant.

The learned Vakil for the appellant relied upon two oases reported as Nilmadhab Bose and others Vs. Ananta Ram Bagdi and others and Fayj Dhali and Others Vs. Aftabuddin Sirdar and Others . These oases establish that the rule that a denial of the relationship of landlord and tenant does not entail a forfeiture does not apply where that denial is given effect to by a decree of Court. It having been found in this case that the land belonged to the plaintiff and it having been found in the previous suit that the defendants are not their tenants, the defendants have no right to remain upon the land and the plaintiff is entitled to khas possession. The learned Vakil for the respondents relies upon a case decided by Mr. Justice Mookerjee and reported as Mallika Dasi v. Makham Lal Chowdhury 2 C.L.J. 389 : 9 C.W.N. 928. On the facts that case is clearly distinguishable from the present case, because in the case before his Lordship Mr. Justice Mookerjee there was no denial of the entire title of the plaintiffs or their predecessor-in-interest. The objection which was successfully maintained was that the plaintiffs alone were not entitled to realise the whole rent, and their claim was dismissed, not because they had no title to any portion of the rent, but because their right to collect any share of it separately from their alleged co-sharers was not established. In this case the denial was of the entire title of the plaintiff and therefore the decision of Mr. Justice Mookerjee reported as Mallika Dasi v. Makham Lal Chowdhury 2 C.L.J. 389 : 9 C.W.N. 928 does not apply to the facts of this case. But Mr. Justice Mookerjee does say this: "But in our opinion the decision in these two cases," referring to the decision in Nilmadhab Bose and others Vs. Ananta Ram Bagdi and others and Fayj Dhali and Others Vs. Aftabuddin Sirdar and Others , "is not consistent with the principle deducible from the cases of Abdur Rahim and Others Vs. Debiruddi and Others, and Ram Jewan Kairi Mahton and Others Vs. Dhora Kairi, , in which it was pointed out that there cannot be any eviction from an agricultural holding governed by the Bengal Tenancy Act, on the ground of forfeiture incurred by denial of the landlord''s title, inasmuch as such ground is not specified in sections 25, 44 and 49 of that Act, which enumerated the grounds of ejectment of occupancy raiyats, non-occupancy raiyats and under-raiyats respectively. To hold that a tenant of any of these three classes may be evicted because by reason of the doctrine of estoppel, be is barred from pleading his tenancy, seems to us to be an application of the doctrine of forfeiture by disclaimer without the formal use of the expression," and their Lordships relied upon the case of Kally Dass Ahiri Vs. Monmohini Dassee, , a decision of Mr. Justice Jenkins, reported in Indian Law Reports 24 Calcutta 440.

So far as the decision of Mr. Justice Jenkins is concerned, that learned Judge had an opportunity of giving expression to his opinion in the much later case of Ekabbar Sheikh and another Vs. Hara Bewa and another . The true principle, as I understand the decision, is laid down in that case where the learned Judges point out that the question is not one of forfeiture but whether having regard to the previous decision between the parties the tenant can plead his tenancy in the later suit. If by reason of the operation of the principle of res judicata, the tenants are unable to plead their tenancy, the question of forfeiture of a tenant under the provisions of the Bengal Tenancy Act does not arise. That is how the late Chief Justice of the Calcutta High Court views the matter and I respectfully follow that decision and the decision in another case reported as Ramgati Mohurer v. Pran Hari Seal 3 C.L.J. 201. I hold that the respondents were not entitled to, nor did they in fact, plead any tenancy and the previous decision is res judicata between the parties and that therefore the appellant is entitled to a decree for ejectment against the defendants, the question of tenancy not being allowed to be raised.

I set aside the judgment and the decree of the lower Appellate Court and restore the judgment and the decree of the Court of first instance. The appellant is entitled to his costs throughout.