Rameshwar Singh Bahadur vs Ramdhari Singh and Others

Wort, Ag. C.J.

This is an appeal in an action in which the plaintiff claimed possession of certain property in Sahidgunj and Kadirgunj being plot Nos. 1, 5, 68, 86, 283, 316, 321 and 328. The action undoubtedly was based on an allegation that the defendant had got possession of this property by purchasing in a so-called rent suit which was fraudulent. That, I repeat, was Undoubtedly the allegation of the plaintiff in the action and the allegation upon which he based his claim. The learned Judge in the Court below dismissed the plaintiff''s case on the ground that he had not established the allegation to which I have just referred.

In those circumstances I vary much regret having to come to the conclusion at which I am about to arrive in this case having regard to the fact that the point upon which it seems to me the case must be decided, is one which was not properly investigated in the Court below, and the blame for that, in my judgment, must be laid at the door of the plaintiff.

The short facts of the case which for the purposes of my judgment it is necessary to mention are that the plots in question were allotted to the plaintiff in certain partition proceedings which came to an end about 10th May 1921. The defendant third party had made some attempt it appears to have these plots included in the raiyati assets of the estate but it was ultimately decided that they were the khas lands of the cosharers and were allotted to the plaintiff.

It is important in the circumstances to note the date. The question was decided finally on 10th November 1921. It cannot be doubted for a moment that the proceedings in the partition action were binding on the plaintiff in this action and on the defendants third party. Now the defendants third party brought certain rent suits, four in number, for the years 1328 and 1329, that is to say 1921 and 1922, against certain alleged tenants. It was contended by the plaintiff in the action that these suits were fraudulent, and if the facts relating to the partition are correct it is of course obvious that the defendants third party had no right to settle these lands with tenants. In those rent actions the plaintiff-appellant was joined as a party. There appears to have been no defence and a decree for rent was ultimately made. The holdings so-called in these actions were put up for sale and purchased by the principal defendant, the respondent in this appeal.

It was contended that the decrees in these actions were not binding on the plaintiff and consequently he was entitled to possession. The main ground upon which that contention was based undoubtedly was that the plaintiff in this action had no notice of the proceedings in the rent suits. The learned Judge has found against that. One point contended before us was that the very fact of the form of the plaint itself in this action is a sufficient indication to show that the plaintiff-appellant had no notice of those proceedings. The plaintiff was sued as "Maharajadhiraj Sir Rameshwar Singh by occupation Zamindar through the Sub-Manager so called, Circle Bhawanipur, Rajdham." It is contended, as I have said, that this was a sufficient indication that he had no notice because, as is argued, although a company may be sued in the name of the Secretary or a partnership in the name of the partners or in the firm''s name there is no provision of law entitling a private person to be sued in the form that the defendant was sued in this case.

In my judgment that argument cannot be supported for this reason. The plaint undoubtedly joined the Maharaja as a party defendant in the proceedings. The expression "through the Sub-Manager" was merely an indication of the manner in which the Maharaja was to be served and that method of service is contemplated by Order 5, Rule 9, Civil P.C. To my mind that disposes of that point and I must say in this connexion it was not very strenuously pressed in this appeal.

There was a point made as to whether any service was made on the sub-manager. A number of Raj servants were called whose names had been given as witnesses of the service on the sub-manager but who denied the fact of service. The learned Subordinate Judge points out in this connexion that although one of the witnesses before him had stated that the Sub-Manager at the time of these rent suits was no longer in the service of the Maharaja, yet the plaintiff had omitted to call that Sub-Manager.

I see no reason why the conclusion of the Subordinate Judge on this point should not be upheld. It was a very important point in the case and there does not seem to me to be sufficient excuse why the Sub-Manager was not called. As far as I know, at any rate it has not been pointed out to this Court, there is no evidence that the Sub-Manager could not be brought before the Court. In the absence of such evidence in my judgment it is somewhat difficult to accept the evidence of those witnesses who were called to depose on this point. There does not appear to be any substance in the contention that the rent actions were fraudulent. The learned advocate on behalf of the appellant contends however that the rent actions cannot be considered as res judicata because nothing was decided against the appellant and particularly because no relief was claimed against him.

Then the second point on these rent suits is this: that assuming that the decree is binding it was a suit merely for the plaintiff''s share of the rent, that is eight annas only, and therefore it cannot be considered to be a rent decree in execution of which the holding passed to the purchaser. There is a third point and that shortly stated is this: that at the time these four rent actions were brought the plaintiffs had ceased to be landlords; and the fourth point is that in the circumstances only the interest which the defendants had at the time, which were non-occupancy rights, would pass to the purchaser. It is unnecessary to deal with that point because it would appear to be a fact that this action was brought within 12 years of the original settlement and therefore in any event the purchaser could not have acquired occupancy rights.

As far as the first point is concerned, namely, that the rent actions cannot be considered as res judicata, the short answer to my mind is this: The present plaintiff that is the appellant before us in this action was joined as a party; the decree such as it was, was passed; in his presence, and therefore it must be held to be binding upon him. The point which is now taken could have been "taken then and in the absence of such issues in those rent suits, to repeat myself, the judgment and decrees in those cases are binding upon the plaintiff-appellant.

And the answer is equally applicable, in my judgment to the second branch of that argument, namely, that there was no relief claimed against him. I deal with this point somewhat briefly because in my judgment there was one point in the case which disposes of the whole case. Now the law on the matter seems to be clear. In the case of Arthur Henry Forbes v. Maharaj Bahadur Singh AIR 1914 PC 111, it was decided that in a case where a landlord had parted with his interest in the property prior to an action for arrears of rent the decree obtained by him could not result in a rent decree, and the subsequent purchaser in execution could only proceed against the tenure or holding. The dilemma which Mr. Amir Ali delivering the opinion of the Judicial Committee of the Privy Council pointed out was that, if it had been otherwise, there would arise a possibility of two contesting decrees, one by the landlord who had parted with his interest and the other in favour of the landlord who was the landlord at the time that the execution was taken out.

It is true that in that case the question arose with regard to the patni; it is also true that the Judicial Committee of the Privy Council pointed out that the patni regulations are a self-contained statute and that the Bengal Tenancy Act did not apply. But it was the view of the law which, if I may say so with great respect, this Court must pay the greatest possible respect to, and in addition to that this view of the law has been followed both in this Court and in the Calcutta High Court.

Briefly and for the reasons which I have stated, I would hold that the holdings in the rent suits did not pass and therefore although the plaintiff failed to prove that the rent actions were fraudulent he was entitled to succeed in the action and entitled therefore to possession.

The result is that the appeal should be allowed with costs; the judgment and decree of the learned Subordinate Judge be set aside and the plaintiff be given a decree for possession and mesne profits which will be ascertained. As the greater part of the second volume, at any rate of the paper book, has not been referred to, the costs allowed should include the printing only of those documents which have been referred to in the appeal, that is to say Ex. 6, Ex. A, Ex. 13-B, Ex. B-2 and Ex. F-2.

Kulwant Sahay, J.

I agree.