Nallamuthu Padayachi vs Srinivasa Ayyar

Krishnan, J.—In this case both the lower Courts have decreed the plaintiff''s suit for ejectment, holding that the defendant''s pleas that he

had a permanent right of occupancy in the suit lands and that the Civil Court had no jurisdiction to try the suit were both barred on the ground of

res judicata. The question argued before me is as regards the plea of res judicata. The way in which that plea of res judicata is raised is this: The

plaintiff in this suit, who was the lessee under the Receiver of the Tanjore Palace Estate, brought O.S. No. 580 of 1911 on the file of the same

District Munsif''s Court, to eject the first defendant and the first defendant therein had raised the same pleas. Those pleas were overruled and a

decree was given for ejectment. The plaintiff''s lease, which he then sued on, was for a period which expired six years after that suit was filed. The

plaintiff had again given a sub-lease for the remaining period of three years of his lease to the first defendant. But the first defendant continued in

possession even after the plaintiff''s lease from the Receiver of the Palace Estate had expired. Subsequently, for two or three years, the plaintiff had

nothing to do with these properties. But he obtained after the lapse of some three years a new lease from the said Receiver. He brings this suit

again to eject the first defendant from his possession of the same lands and the first defendant has raised, as already stated, the pleas that he has

got occupancy right and that the Civil Court has no jurisdiction to try the suit. The finding of the lower Courts is that the matter is res judicata

between the parties and that the first defendant cannot be allowed to raise Those pleas. This finding is attacked before me by the learned, Vakil for

the first defendant on three grounds. He says first of all that no plea of res judicata can be advanced against the plea of want of jurisdiction and he

relies upon Subba Rao v. Perumal Reddi 37 Ind. Cas. 906 : 5 L.W. 467 : (1917) M.W.N. 318, as authority for the proposition. The second point

raised by him is that, at any rate, the previous decision cannot conclude rights, which have accrued to him, since the disposal of that suit and he

says that it is open to him to contend in this suit that by being put into possession of the properties he has obtained a right of permanent occupancy

and for that purpose to show that the Tanjore Palace Estate is an ""estate,"" within the meaning of the Estates Land Act as was subsequently held by

a Full Bench of this Court, in Sundram Ayyar v. Ramachandra Ayyar 40 Ind. Cas. 975 : 40 M. 389 : 32 M.L.J 333 : (1917) M.W.N. 383 : 5

L.W. 789. That case, no doubt, dealt with another village and not with this, but the finding of the Full Bench was a general finding that the whole

Tanjore Palace Estate was an estate under the Estates Land Act. The third plea raised by hint is that the plaintiff is not now, litigating under the

same title, as he was litigating under, in the previous suit, as he is now claiming under a new lease from the Receiver, the old lease having come to

an end by lapse of time.

I shall take up the last ground, first, because if that is found in favour of the appellant and against the respondent, it is not necessary to consider

the other two pleas. It seems to me quite clear that that plea is a well-founded one. Section 11, Civil Procedure Code, which deals with res

judicata, requires as one of the conditions for the plea of res judicata to be supported, that the parties should be litigating under the same title in the

subsequent suit, as they were litigating under in the first suit. The lower Courts have not considered the case from this point of view at all They

seem to have thought that because the plaintiff and the defendant were parties to the previous litigation, therefore, the plea of res judicata would

stand; but the effect of the words "" litigating under the same title"" was not considered. Here, there can be no doubt whatsoever, that the plaintiff is

now litigating under a new title, derived from the Receiver, subsequent to the date of the decision of the previous suit. That a lessor is not bound by

a finding as between the lessee and a third party was laid down in Anakkaran Puthiavalappi Mussan Haji Vs. Thiyan Thavara Koran and Others,

and it has also been laid down that a lessee who claims under a title previously created by a lessor is not bound by a subsequent finding between

the lessor and third parties. It follows, therefore, that as the Receiver of the Tanjore Palace Estate was certainly not bound by the finding between

the plaintiff and the defendant in O.S. No. 580 of 1911 and was not entitled to take advantage of it, any person claiming under that Receiver,

under a title obtained subsequent to the suit, cannot be held to be bound by it, or to take advantage of it, even though that person may be the

identical person who contested the suit. He is clearly litigating under a new title. On this footing, the plea of res judicata has to fail. I do not think it

necessary to deal with the other two grounds raised.

As a result of this, the appeal must be allowed and the plea of res judicata raised by the plaintiff must be disallowed and the case remanded to

the First Court for disposal on the merits. The appellant will have his costs in appeal and in second appeal, from the respondent; but the costs of

the First Court will abide and follow the result. The Court-fee paid here and in the Appellate. Court will be refunded.