Parmeshwar Panday vs Ramdhari and Others

Dhavle, J.—This is an appeal by the plaintiff who in 1927 purchased four acres out of an area of 405 acres recorded in the survey and settlement as the occupancy holding of Harbans, defendant 3. Bikram Rai, father of defendants 1 and 2, had been recorded as the shikmi tenant of the holding, and the suit was brought for an apportionment of the rent payable by the shikmi tenants between the plaintiff as purchaser and defendant 3 as vendor, and for recovery of back rents due to the plaintiff from defendants 1 and 2 by reason of his purchase. The trial Court found that defendants 1 and 2 had a title to the holding independent of defendant 3; that defendant 3 had conveyed nothing to the plaintiff; and that the plaintiff''s claim of title through defendant 3 was barred by res judicata and limitation or adverse possession. The suit was accordingly dismissed and an appeal which was heard by a Subordinate Judge failed. It has been urged before me on behalf of the appellant that the decision of the lower Courts is wrong for more than one reason. It is said that in the first place there was an admission by Bikram Rai that he held the land shikmi under defendant 3. which now estops defendants 1. and 2. It is next urged that the Record of Rights, which was finally published in January 1912, supports the claim of the plaintiff, and that the lower Courts have erred in their view of res judicata as regards the ejectment suit of 1915 and the rent suit of 1918. It is also urged that there could be no adverse possession for defendants 1 and 2 to assert until they gave up their possession as shikmidars to defendant 3 as the person who had put their father in possession as shikmi tenant. On the other hand it has been urged on behalf of the respondents that even apart from the question of res judicata, the matter is really concluded by the findings of fact of the Courts below.

The plaintiff''s case was that the holding of 405 acres originally belonged to his ancestors but was put up to sale in execution of a rent decree and purchased by the landlord, the proprietor of the Dumraon estate, who in 1907 settled it with defendant 3 for seven years under a registered patta (Ex. 5), and that it was defendant 3 who brought Bikram Rai, father of defendants 1 and 2, on the land as a shikmi tenant. The story that the land originally belonged to the ancestors of'' the plaintiff was disbelieved by the trial Court, which pointed out that the rent receipts produced in support of the story were not shown to refer to the land now in dispute, especially on account of the difference in the jama. The Record of Rights showed Bikram Rai as a shikmi tenant in possession for 20 years, and as this was in 1912, it is clear that it clashes with the plaintiff''s story that Bikram Rai was brought upon the land by defendant 3 after the patta of 1907. In 1910, while the settlement proceedings were going on, Bikram Rai made a complaint to the Magistrate against defendant 3 and others, in which it was stated that there had been a dispute between the parties regarding a field as to which he had received a parcha. In his examination on that complaint Bikram Rai stated that he was the shikmi tenant of Harbans (defendant 3). Referring to this document, on which much stress has been laid before me, the learned Munsif said that he was not inclined to believe the story of defendant 1, that the Bikram Rai referred to in the plaint "must have been somebody else and not his father." But he observed that it was very difficult to connect the land now in dispute with the field which was the subject matter of the dispute on that occasion, and that further, even supposing that the lands were identical, the admission was not conclusive proof.

The learned Subordinate Judge who heard the appeal refers to the petition of complaint and Bikram Rai''s examination on it, but does not give his own findings nor does he express his dissent in any way from the views of the trial Court. Even if the story of shikmi in the petition of complaint or the examination upon it were to be taken to refer to the shikmi found in the Record of Rights, it is clear as regards the shikmi set up by the plaintiff, namely, a shikmi under defendant 3 after the patta of 1907 from the Dumroan proprietor, that if Bikram Rai''s shikmi interest dates from before Harbans''s patta, as is shown by the Record of Rights, there can obviously be no estoppel between him or his sons, defendants 1 and 2 and Harbans or his purchaser, the plaintiff, and the contention on behalf of the appellant that the shikmidar could not set up the plea of adverse possession against Harbans or his purchaser until he gave up his possession as shikmidar, which was rested, before me, on Bilas Kunwar v. Desraj Ranjit Singh AIR 1915 PC 96, would be (unfounded. Bikram would on that footing have been inducted upon the land not by Harbans, but by the original tenants who were sold out by the landlord before 1907; and it would not be necessary for him to give up possession to the new raiyat of 1907, Harbans, before setting up adverse possession against him.

I will now turn to the litigation on which the plea of res judicata has been raised and found in favour of the defence by the lower Courts. In 1915 the Dumraon proprietor brought a suit for ejectment against Harbans and Bikram on the ground that the land was his khas land, but had been given to Harbans under a seven years lease and that this term had expired. Harbans contested the claim on the ground that though in accordance with the prevailing custom in the plaintiff''s estate he had been given a seven years patta, what he bad taken under it was the right of occupancy. Bikram, on the other hand, contended that the land was his guzashta, ancestral holding, and that he was not a shikmi tenant of Harbans and was not liable to ejectment on the expiry of Harbans''s lease. The trial Court found that the land had not been shown to be the khas land of the plaintiff, that the settlement with Harbans, then defendant 1, by means of the patta was a "pen and paper transaction," that defendant 1 had never taken actual possession of the land under the patta nor ever paid rent for it, and that defendant 2, Bikram Rai, was in actual possession on his own account and would have had to be treated as a trespasser but for the fact that in the survey and settlement he was recorded as a shikmi tenant. On these findings the ejectment suit was dismissed. There was an appeal by the plaintiff landlord, and the Subordinate Judge who heard the appeal agreed with the trial Court in disbelieving the plaintiff''s story of khas possession before the alleged seven years settlement with defendant, apparently regarded the patta as a colourable transaction, and found in accordance with the Record of Rights that defendant 2 had been in possession as a tenant for more than 20 years. The appeal was therefore dismissed.

The learned Munsif, who tried the suit out of which the appeal before me has arisen, carefully considered the question of res judicata apart from the question of title (that is to say, title irrespective of res judicata) and came to the conclusion that the decision in the ejectment suit that Harbans had taken nothing under the patta operated as res judicata between the co-defendants Harbans and Bikram Rai. The lower appellate Court has taken the same view. That there was a conflict of interest between these co-defendants in that suit is obvious and is not disputed. The learned Munsif also held that it was necessary in that suit to decide the conflict between the co-defendants in order to give the plaintiff appropriate relief. This has been contested by the learned Government Pleader who appears for the appellant and who has urged that the landlord''s ejectment suit would have failed in one of three contingencies: (1) it would have failed if defendant 1 had succeeded in establishing his occupancy right; (2) it would have failed if Bikram Rai, defendant 2, had succeeded in showing that he had been rightfully inducted on the land by some person other than defendant 1, and (3) it would also have failed if Bikram had a permanent title under Harbans, and Harbans a permanent title under the plaintiff.

But before considering why exactly the suit failed and assessing the effect of the failure, it is desirable to appreciate the nature of the suit and the possibility of giving any relief to the plaintiff in order to make it clear what it was that the Court was called upon to decide on that occasion. The plaintiff could only succeed on proof of his story, namely that the right of Harbans had come to an end by reason of the expiry of the seven years'' lease which alone gave him his title and that Bikram Rai was only a shikmidar under Harbans and was therefore not entitled to be on the land after the expiry of Harbans''s right. These matters were both disputed and were actually put in issue. They were also actually decided; and it is to be noted that they involved a conflict of interest between the defendants, Bikram claiming an independent right of occupancy, while Harbans deposed (Ex. C) that Bikram had merely dispossessed him by force. It is true that the suit was dismissed; but as was pointed out in AIR 1932 161 (Privy Council) , there is no principle or authority on which it can be said that the doctrine of res judicata does not apply as between co-defendants in a previous suit if no relief has been granted to the plaintiff in that suit. The decision definitely negatived the occupancy right set up by Harbans; and it has to be remembered that according to the plaintiff in the present case it is in subordination to this occupancy right of Harbans that Bikram or his sons, defendants 1 and 2, have their shikmi right. The dismissal of the suit was, it is true, directly based not on the finding against Harbans''s right of occupancy but on the finding in favour of the independent shikmi tenancy of Bikram, the second of the three contingencies formulated by the learned Government Pleader. This latter finding, however, was also destructive of Harbans''s claim; and there is authority for the view that in such circumstances Harbans could have appealed against the decision on the ground that not with standing the dismissal of the suit, he was adversely affected by the pronouncement in favour of the co-defendant. As a matter of fact, the lower Courts have also dealt with the matter on the footing that the decision in the ejectment suit was only a piece of evidence; the learned Subordinate Judge calls it a strong piece of evidence in the present case instead of operating by way of res judicata. Even if the decision is regarded in that light, the result in their opinion was apparently the same.

In 1918 the Dumraon proprietor brought a suit for rent against Harbans and Bikram Rai''s sons. Harbans did not appear in spite of a summons. Bikram Rai''s sons contended that Harbans was never a tenant of th holding; that the settlement by patta with him alleged by the landlord was a collusive transaction not binding upon them, as (they said) had been decided in the previous suit for ejectment; that they were the tenants of the land and were liable to pay a much smaller rent than that shown in the record of rights according to Harbans''s patta. The first point framed for determination in that rent suit was whether defendant 1, (Harbans Singh) had any concern with the land in suit, and this was answered by the Court in the negative on the ground of res judicata, having regard to the original and the appellate judgments in the ejectment, suit

The learned Munsif who tried the present suit was of opinion that this decision in the rent suit was also res judicata as between Harbans and the other defendants 1 and 2. As to this, the learned Subordinate Judge began by observing that in a rent suit no question of title in its entirety can be decided, and that therefore if any finding on title is recorded in such a suit, it would not bind as res judicata. In support of this observation he cited a ruling 10 CWN 820 which does not seem to have any application to the facts of the present case. That was a ruling in which a distinction was made between cases in which the defendant sets up a title in himself as against, the plaintiff landlord and cases in which he denies the relationship of landlord and tenant by setting up the title of a third person or claiming that he is not in occupation of the land or a tenure which existed but has expired. In the latter class of cases no question of title can properly be said to be decided in the rent suit. In the former however, a question of title is directly raised between the plaintiff and the defendant and if decided, will obviously give rise to res judicata. In the rent suit with which we are dealing, the question that arose was of a different kind.'' The record of rights showed defendant 1, as the occupancy raiyat, while the plaintiff''s case was that Harbans was only entitled to cultivate the lands for seven years under the.patta of 1907 and that the term of that patta had expired. The Record of Rights also showed Bikram as the shikmi raiyat (for 20 years). That, of course, was no reason for impleading Bikram''s sons as defendants 2 and 3 in that rent suit. It is obvious that the landlord impleaded them on that occasion because it had been held by the Courts in the ejectment suit and appeal that the settlement with Harbans by means of the patta was collusive and that the person really in possession was Bikram. In the rent suit, therefore, it became obviously necessary for the Court to pronounce between the conflicting titles of Harbans and Bikram, and the Court did pronounce in favour of Bikram. That Harbans took no part in the suit does not affect the application of the doctrine of res judicata. His title as the person entitled to receive rent from Bikram or his sons in respect of the holding was clearly in issue and was definitely negatived.

It is true that the suit was dismissed as against Harbans, but it is obvious that in spite of this dismissal Harbans could have appealed on the ground that his title vis-avis Bikram or his sons had been negatived: see Krishna Chandra Goldar v. Mohesh Chandra Saha 9 CWN 584 and Raghunath Kurmi v. Deo Narain Rai, AIR 1917 Pat 350. It seems to me, therefore, that the learned Subordinate Judge fell into an error if he really meant to hold (for he seems to have qualified, later on, what he had said on the case from Sahadeb Dhali v. Ram Rudra Halder, (1906) 10 CWN 820 that no res judicata could be founded on the decision of the rent suit of 1919. But this only adds to the strength of the findings of fact of the lower appellate Court against the appellant. The trial Court referred to the absence of any evidence that Harbans had ever paid rent to the landlord in respect of this holding and to the fact that defendants had produced rent receipts since 1928. The appellant''s story of the landlord''s settlement with Harbans and the shikmi settlement by Harbans with Bikram who is now represented by his sons rests substantially on the documents produced by the parties in the case. His oral evidence has been discussed by the Munsif and characterised as quite worthless. As to the documents the principal ones have been noticed so often that there is really nothing more to say about them, especially as the lower Courts took care to consider the matter even on the footing that the decisions in the ejectment suit and the rent suit did not form res judicata but were merely evidence to be explained away by the plaintiff in the present suit. It seems to me impossible, therefore, to interfere with the decision of the lower Courts that Harbans had no title to convey to the plaintiff by the kobala of 1927.

The only other point that has been raised before me is the question of adverse possession, with which I have already dealt in part. If the appellant had succeeded in showing that Bikram came into possession of the holding under Harbans, it would undoubtedly not have been open to Bikram or his sons to set up adverse possession before surrendering the land to the person who had inducted them. But the record of rights, as I have already said, is inconsistent with a shikmi settlement by Harbans who had had nothing to do with the land before 1907; and in his deposition in the ejectment suit Harbans spoke of Bikram forcibly taking possession of the land in or after 1317. The adverse possession, moreover, claimed on behalf of Bikram or his sons is not now set up for the first time. It was, as we have seen, asserted in the ejectment and the rent suit, and further accepted by the Courts on that occasion, and the present suit was brought more than 12 years after the appellate decision in the ejectment suit. The points urged before me on behalf of the appellant all fail. The finding of fact that Harbans had no title to convey to the plaintiff in 1927, so far as it is a finding of fact, is binding on me; and, so far as it is a question of law based on inference from documents and the decisions of the Courts, is not vitiated by any error of law especially as the lower Courts have also dealt with the matter on the footing that there was no res judicata but that the earlier decisions only furnished strong evidence which it was necessary for the plaintiff-appellant to meet. The appeal fails and is dismissed with costs.