Raghunath Kurmi and Another vs Deo Narain Rai and Others

Mullick, J.—The case of the plaintiffs is that they hold 3 raiyati holdings under defendants Nos. 2 and 3, but that while the Record of Rights shows them correctly to be the tenants of defendants Nos. 2 and 3 in respect of the holding of 1 bighas 1 cottah, bearing a rental of Rs. 8-10-3, it wrongly shows them to be the tenants of defendant No. 1 in respect of the other two holdings which measure 2 bighas 19 kottas and 2 bighas 2 kottas 18 dhurs, respectively. They also allege that this defendant has been wrongly shown in the Records of Rights to be a tenure-holder under defendants Nos. 2 and 3 in respect of these holdings and further that the Record of Rights has wrongly omitted survey plots Nos. 348 and 482 from the holdings. The plaintiffs accordingly ask for the following reliefs:

(1) That the relationship of landlord and tenant does not exist between the plaintiffs and defendant No. 1;

(2) That the defendant No. 1 is not a tenure-holder; and

(3) That plots Nos. 347, 348 and 482 are not parts of the tenure of defendant No. 1 but parts of the raiyati holdings of the plaintiff.

The suit was dismissed. There was an appeal by the plaintiffs and a cross-appeal by defendant No. 1 with the result that the appeal was dismissed, while the oross-appeal was decreed. The subject of the cross-appeal was this, that the Trial Court had found that the plaintiffs were tenants under defendant No. 1 in respect of the holdings in suit and that defendant No. 1 in his turn was a tenure-holder under defendants Nos. 2 and 3.

The case of defendant No. 1 in the trial Court was that there was no connection between him and the plaintiffs and that the Record of Rights to that extent was incorrect. Therefore, the order of the learned Subordinate Judge on appeal was in favour of defendant No. 1 and the effect of his order decreeing the cross-appeal waa that defendant No. 1 was a tenure-holder and that the plaintiffs had no raiyati interest in the lands in suit.

With regard to the finding as to plots Nos. 347, 348 and 482 the plaintiffs have not taken any objection before me and the finding that these plots do not belong to the plaintiffs is conclusive and final. The only grievance that the plaintiffs have in second appeal is that the learned Subordinate Judge has made a decree declaring that the plaintiffs are net raiyats of the land at all. As this declaration will be res judicata they desire that the learned Subordinate Judge''s decree should be corrected and the Munsif''s deoree restored. The point of law taken by the learned Vakil for the plaintiffs before me is that the whole suit having been dismissed by the Munsif, it was not competent to defendant No. 1 who was the successful party to prefer either an appeal or a crossappeal, and it is observed that the Code only allows appeals against decrees; it allows no appeal against a finding so that if the decree of the Munsif was in favour of defendant, the finding as to the plaintiffs'' tenancy under the defendant must be treated as merely obiter and could not be attacked in appeal. Now it is quite clear that although the learned Munsif''s deoree is expressed in very general terms, it must be construed as a decree refusing the reliefs prayed for in the plaint and which have been set out in full in the opening paragraphs of the decree. One of these reliefs, as has already been shown, was for a declaration that the plaintiffs were not the tenants of defendant No. 1 and a distinct and specific issue was framed for the purpose of determining this question. The learned Munsif decided the question against the plaintiffs and held that they were raiyats of defendant No. 1. The decree of dismissal, therefore, must be construed as involving the declaration that the plaintiffs were the raiyats of defendant No. 1. Now admittedly the defendant No. 1 is aggrieved by such a declaration and, therefore, he had the right to attack by cro3S-appeal that part of the decree. He might also without having preferred a cross appeal have supported the decree of the Mnnsif by filing a cross-objection against the finding as to the tenancy of the plaintiffs and by satisfying the Subordinate Judge that that finding was wrong. But the defendant chose to prefer a cross-appeal and there was no obstacle in law to his doing so. It is not really necessary for the purposes of this second appeal to go into the question whether or not the finding of the Munsif as to the tenancy of the plaintiffs under defendant No. 1 would have b9en res judicata in any event and whether the learned Vakil for the appellants is right in contending that it would not have been res judicata if the Subordinate Judge had not embodied that finding in his decree. Reliance in this connection is placed upon Jamaitunnissa v. Lutfunnissa 7 A. 606 : (1885)A.W.N 89 : 4 Ind. Dec. 657 and Run Bahadur Singh v. Lucho Koer 11 G. 301 : 12 I.A. 23 : 4 S P.C.J. 602 : 9 Iad. Jur. 202 : 5 Ind. Dec. 960 (P.C.). No doubt these cases are authority for the proposition that where a particular finding is not necessary for the purposes of the decree made by the Court, then that finding must be treated as an obiter dictum bat that is not the case here. Here the declaration that the plaintiffs are the raiyats of the defendants, was one of the main reliefs of the suit and the dismissal of the suit means that that declaration has been refused by the Munsif and the finding that the plaintiffs were the tenants of defendant No. 1 was a vital and integral part of the decree. If it were necessary to decide this point, my opinion would be that the finding is res judicata, apart from the fact that the Subordinate Judge''s order is now definitely incorporated into the decree.

The appeal, therefore, fails and is dismissed with costs.