Raghunath Kurmi vs Deo Narain Rai

The plaintiffs have preferred this appeal order clause 10 of the Letters Patent from a judgment of a single Judge of this Court, dated the 21st May 1917, affirming a decree of the Subordinate Judge.

The plaintiffs claim to be tenants of three small raiyati holdings in Mauza Parsanwah owned by the Dumraon Raj. In the last Survey and Settlement operations they were recorded in respect to two of the holdings as tenants of Deo Narain Rai, the defendant No. 1, who is described as a tenure-holder under the Raj, whereas they contend that they are in fact direct tenants under the Maharaja of Dumraon and that the defendant No. 1 has no interest as tenure-holder and is not their landlord. They were farther aggrieved by the fact that three plots of land numbered 347, 348 and 482 in the survey had been recorded in the Survey Khatian as included within the Khata of the defendant No. 1, whereas they asserted that these plots should have been included as portions of their holdings. They, therefore, instituted a suit against (1) Deo Narain Bai, (2) the Maharaja of Dumraon and (3) Brija Raut, a mokararidar of the Maharaja who has mortgaged his interest to the latter.

By their prayer in the plaint the plaintiffs claimed the following declarations: (1) that the plaintiffs are the direct raiyats under the defendants Nos. 2 and 3, (2) that the relationship of tenant and landlord does not exist between the plaintiffs and defendant No. 1, (3) that the defendant No. 1 is not a tenure holder of the lends in suit and (4) that the disputed plots numbered 347, 348 and 482 are not part of the tenure of defendant No. 1 but part of the plaintiffs'' holdings and that the entries in the survey record to the contrary are wrong. They also claimed confirmation of their possession or alternatively delivery of possession.

The defendant No. 3 did no appear and service of summons on him was not proved. The defendants Nos. 1 and 2 contested the suit. The defendant No. 1 pleaded that be was a tenure-holder of the lands in suit under the Maharaja and that the disputed plots were not part of the holdings recorded in the plaintiffs'' names. The Maharaja also pleaded that the plaintiffs were not his tenants but that the defendant No. 1 was. The defendant No. 1 further contended that the plaintiffs had no interest in the disputed holdings which had been settled in the names of the plaintiff No. 1 and his uncle respectively as benamidars of the defendant No. 1, who was himself the real holder of the occupancy rights and that he paid the rent and took receipts in the farzi name of the plaintiffs, who as well as their ancestors were and had been this defendant''s ploughmen. He further contended that the plaintiffs had improperly got themselves recorded as his raiyats, whereas they had no rights in the land at all and the survey record was incorrect in so far as it recorded them as tenants under him.

It will thus be seen that the defendants agreed with the plaintiffs that there was no relationship of landlord and tenant between them although for different reasons. On the other issues they were in dispute.

The Munsif found (1) that the disputed plots were not part of the holdings claimed by the plaintiffs, (2) that the plaintiffs were not the direct tenants of the Raj, (3) that the defendant No. 1 was the tenure-bolder of the disputed holdings. With regard to the question whether the plaintiffs were tenants under the defendant No. 1, I have already remarked that the plaintiffs disclaimed any such relationship and asked for a declaration that they were not the tenants of this defendant. The defendants were agreed about this and there was, therefore, no issue on this question raised by the pleadings. There was no alternative claim that they held under defendant No. 1 in the event of the first declaration being refused. The Munsif ought, therefore, to have treated the matter as concluded by the pleadings. It appears, however, from his judgment that be framed a separate issue No. 4: "Does the relationship of landlord and tenant exist between the plaintiffs and defendant No. 1 in respect of Khatas numbered 175 and 178" (the disputed holdings). In dealing with this question he said: "It seems to me that the defendant No. 1, after taking settlement of the lands benami in the name of plaintiff No. 1 and his uncle, allowed the plaintiffs to cultivate the land taking certain shares of the produce and used to pay the rent of the holdings to the Raj." Ha then same to the conclusion that the oral evidence on both sides was not sufficient to rebut the presumption of the settlement entry and held that the Record of Rights was not liable to alteration and that the plaintiffs were the tenants of defendant No. 1. He then ordered that the suit be dismissed with costs. The decree has not been produced before us, but it is agreed that it is merely to the effect that the suit is dismissed with costs.

From this decision the plaintiffs appealed to the Subordinate Judge. It will be seen that in so far as the judgment of the Munsif is concerned, it found that the plaintiffs were the tenants of the defendant No. 1. This was, in fact, a finding against the defendants who denied the relationship. In fact there was no issue between the parties on this point and the Munsif ought not to have raised it as it was not the case of either side. He did, however, settle issue No. 4 raising this very question and decided it in the plaintiffs'' favour. The decree, therefore, dismissing the suit with costs, although it was drawn in apt language to express a dismissal of the suit as originally pleaded, did not properly describe the result of the findings upon the 4th issue, which was really a finding in favour of the plaintiffs assuming they were found not to be the tenants of the Raj. When the plaintiffs appealed to the Subordinate Judge, the defendants entered a cross appeal although the decree was apparently in their favour and contended that the finding that the plaintiffs were their tenants should be set aside. No objection was raised to this procedure at the time. The Subordinate Judge agreed with the Munsif in finding that the plaintiffs were not tenants of the Raj and as both parties disputed the correctness of the entry in the Survey Khatian showing the plaintiffs as tenants of defendant No. 1, he allowed the cross-appeal and a decree was entered accordingly, the material part of which was: "It is ordered that the appeal is dismissed with costs and the cross-appeal is allowed without costs and the plaintiffs appellants have no kasht rights." From this decision the plaintiffs appealed to this Court and contended that the lower Appellate Court should not have entertained the cross-appeal as the decree was in favour of the defendants who had, therefore, no right of appeal, as the CPC only allows appeals against decrees and not against findings merely.

The learned Judge of this Court who heard the appeal was of opinion that although he thought the finding that the plaintiffs were the tenants of defendant No. 1 would operate as res judicata under the decree of the Munsif, it was not necessary to decide this point because the defendant No. 1 could, without filing a cross-appeal at all, have supported the Munsif''s decree by satisfying the Subordinate Judge that the finding was wrong and that the decree, in so far as it dismissed the plaintiffs'' claim including a dismissal of the claim under issue No. 4 that they were tenants of the defendant No. 1, was right. He, therefore, dismissed the appeal with costs.

From that decision the plaintiffs have preferred the present appeal.

The real difficulty in the case arises from the fact that the Munsif framed an issue on a question about which no dispute arose on the pleadings and having decided it really in favour of the plaintiffs and against the defendant No. 1, he dismissed the plaintiffs'' suit and entered a decree to that effect, ignoring or forgetting the fact that part of his findings were in favour of the plaintiffs and that he ought to have decreed the claim in part, treating the case as one in which the plaintiffs had claimed in the alternative that they were tenants of the defendant No. 1 It is true the plaint claimed a declaration, first, that the plaintiffs were tenants of the Maharaja and, secondly, that they were not tenants of the defendant No. 1. The defendants denied the right to the first declaration but admitted the second, and as there was no alternative claim that in the event of the first being decided against the plaintiffs they were entitled to a declaration that they were at least the tenants of the defendant No. 1, there was no necessity to raise this issue. This issue, however, was raised at the trial and decided in the plaintiffs'' favour just as if it had been claimed in the plaint as an alternative relief. It must be taken, therefore, that it was one of the issues in the case and although the finding was in the plaintiffs'' favour, the decree on this as on other issues was in favour of the defendants. Now when the decree is in general terms, it is permissible to look to the judgment to ascertain what the real issues were in order to see how far the decree operates as res judicata, and if the Munsif''s decree is binding, it most be taken that the 4th issue was decided against the plaintiffs and in this respect it was not in accordance with the findings. The plaintiffs might have applied to the Munsif to amend the decree in their favour in accordance with the findings or they could have appealed. They chose the latter course. In these circumstances it was open to the respondent before the Subordinate Judge without instituting a cross appeal to support the decree on any of the grounds decided against him in the Court below. This is in fact what the defendant did and his cross-appeal was not really necessary. The defendant No. 1, the respondent before the Subordinate Judge, convinced him that the Munsif''s finding was wrong and that the decree was right, although its effect was not that which the Munsif had intended. It seems to me, therefore, that although in form the Subordinate Judge may have been wrong in saying that the cross-appeal was allowed, as the decree was not appeasable by the defendant in substance, he was right in embodying in the decree a declaration that the plaintiffs had no kasht right in the property in suit. By Order XLI, rule 33, the Appellate Court has power to pass any decree which ought to have been passed or to make any further decree as the case may require in favour of any of the parties. The decree on the facts found by the Subordinate Judge was right, but he was entitled in order to prevent ambiguity to add that the plaintiffs had no kasht right. In these circumstances it appears to me that the learned Judge of this Court was right in dismissing the appeal. This appeal, therefore, fails and is dismissed with costs. In order to prevent any further question, the decree of this Court will be that the appeal is dismissed with costs and it is further declared that the plaintiffs have no interest as tenants of the lands in suit.