Res. Judicata-Suit to reopen issue decided on intervention of third party in a suit under Act VIII (B. O.) of 1869 (Bengal Rent Law).

T. sued for arrears of rent on a specific share of a tenure. G. intervened, denying T.'s right and title, and claiming the right to receive the entire rent. An issue was then tried whether T. was entitled to receive the rent claimed as against G. Held, that the question of title having been determined, G. could not sue to reopen the same matter.

SPECIAL Appeal from the judgment of Baboo Srinath Roy,

Subordinate Judge of Furridpur, dated 14th February 1876, affirming that of Baboo Unnoda Nath Mozumdar, Munsiff of Bhanga, dated the 6th July 1875.

For Plaintiffs, Appellants: Baboo Obhoy Churn Bose.
For Defendants, Respondents: Baboo Bungshidhur Sen.

This case was referred to a Full Bench by GARTH, C.J., and ROMESH CHUNDER MITTER, J., in the following terms :

This is a suit brought by the plaintiffs to recover possession of a one-anna share of a certain jote.

In the year 1871, the plaintiffs claimed to be entitled to a fifteen-annas share of the said jote, and the defendant No. 1 to a one-anna share thereof.

In that year the superior landlord of the jote sued some per sons, other than the defendant No. 1, for rent of the entire jote, and obtained a decree against them, under which the said tenure was put up for sale and purchased by the defendant No. 4, who again sold the same share to all the plaintiffs in the name of the plaintiff No. 1.

The defendant No. 1 then brought a suit, No. 1174 of 1872,

1877 GOBIND CHUNDER

for arrears of rent of the one-anna share against the occupying tenant of the jote, Mohun Chunder Das, in which suit the plaintiff No. 1 intervened as a defendant upon the ground that he, aud not the present defendant No. 1, was entitled to the rent TARUK CHUN- claimed.

KUNDU AND

OTHERS v.

DER BOSE

AND OTHERS.

Case stated.

GARTH, C.J.

GARTH, C. J.

Thereupon the question was raised in that suit whether the then plaintiff (the defendant No. 1), or the then defendant (the present plaintiff No. 1) was entitled to the rent as owner of the one anna share, and that question was adjudicated upon and decided against the present plaintiff.

The intervening defendant in that case (the present plaintiff No. 1) claimed to be the owner of the entire jote by virtue of the said sale to him on behalf of all the present plaintiffs, and the only question in this suit is, whether the plaintiffs (by virtue of that sale) are the owners of the one-anna share of the jote as against the defendant No. 1, the plaintiff in the former suit.

Both the Lower Courts have held that the plaintiffs are barred by the judgment in the former suit, (by virtue of Section 2, Act VIII of 1859)' upon the ground that the selfsame question, which was there raised and decided, is also raised in this suit.

The question has now come before us on special appeal; and as there appear to be conflicting decisions of this Court upon it, (see Mussumat Sushibuth Koer vs. Sheik Mubbud Ali, 24 W. R., 44; Mohima Chunder Mozumdar vs. Asradha Dassia, 21 W. R., 207; Deoki Nundun Roy vs. Kali Prosad and others, 8 W. R., 366), and as the point is one of general importance, we think it right to refer the question to a Full Bench.

The question is, whether, under the circumstances stated, the plaintiffs are barred by the judgment in the former suit.

The judgment of the Court was delivered by
GARTH, C. J. :-

I am of opinion that in this case the plaintiffs are barred by the former judgment.

Since repealed-the law on the subject being now contained in Section 13, Act X of 1877.

2 GARTH, O.J., JACKSON, MACPHERSON, MARKBY, and AINSLIE, J.J.

It is to be observed that the present suit is not to recover khas possession of the property in question. The land is in the occupation of a tenant; and the plaintiffs' only object is to establish their title to it as against the defendant No. 1.

1877

GOBIND CHUNDER KUNDU AND

OTHERS

v.

DER BOSE

We have, therefore, to see whether the right and title, which is TARUK CHUNsubject of claim in this suit, was not the very same right and AND OTHERS. title which was in issue between the same parties, and determined Judgment.

in the former suit.

When once it is made clear that the selfsame right and title was in issue in both suits, the precise form in which the suit was brought, or the fact that the plaintiff in the one Case was the defendant in the other, becomes immaterial.

Now, in this instance, the plaintiff in the former suit is the same person as the defendent No. 1 in this; and he sued to recover from the occupying tenant the rent of the property now in dispute. In that suit one of the present plaintiffs (representing and claiming the same right under the same title which is now claimed by all the plaintiffs), intervened as a defendant; and he resisted the then plaintiff's claim to the rent, upon the ground that he (representing the present plaintiff's interest) was entitled to it as the owner of the property,

An issue was accordingly framed in that suit, as to whether the then plaintiff (the present defendant No. 1) was entitled to the rent as owner of the property in question, as against the then defendant who represented the present plaintiffs. This question was contested between them in that suit upon the same title and materials which are now brought forward in the present suit; and the only difference is, that the plaintiff in that suit is the defendant in this.

On the other hand, it is argued by the appellant that the claim in the former suit was for rent against the tenant; that the only issue in that case was whether the plaintiff was entitled to that rent; and that the question of title raised by the intervening defendants was only incidental to the main issue. But, as between the plaintiffs and the intervening defendant the question, and the only question, was that of title, and as the defendant in that suit chose to intervene and to raise that question between himself and the

GARTH, C.J.

1877

plaintiffs, be, and those whom he represented, must take the consequences of their intervention.

Our decision in this case will be found entirely in accordance with the views expressed by the Fall Beach in the case of Huru TAXTA CATS- Sunkur Mookerjee re. Kristo Pattro and others, 24 W. R.,

Judgment.

GARTH, C.J.

154.

The appeal will be dismissed with costs.

Bengal Legislative Council, Power of-Special Appeal in rent suits-Act

VIII (B. C.) of 1869, Section 102.

Held (L. S. JACKSON, J.J., dis.)-That there is no right of Special Appeal in the cases specified in Section 102, Act VIII (B.C.) of 1869.

Per GARTH, C.J. and MACPHERSON and MARKBY, J.J.-That this matter has been settled by a Full Bench (Brojo Misser vs Mussumat Ablakee Musrain, 21 W. R., 320; 13 B. L. R., 376;) and a long course of decisions which should not be disturbed.

Per GARTH, C.J.-That otherwise there is a right of Special Appeal, the Bengal Legislation having acted ultra vires in enacting Section 102, Act VIII (B.C.) of 1869.

Per L. S. JACKSON, J.-That there being the right of Special Appeal, no course of decisions can affect it.

Per MACPHERSON and MARKBY, J.J.-That it is not for the Court now to consider the matter, which if, wrongly decided, can only be rectified by the Legislature of the Government of India.

Per AINSLIE, J.-That the Bengal Legislature by enacting Section 102, Act VIII of 1869, did not act ultra vires because it did not touch any right of Special Appeal in rent suits then subsisting.

SPECIAL APPEAL from the judgment of the Judge of Sarun,

dated 13th March 1876, reversing that of the Moonsiff of Chumparun, dated 18th December 1875.

For Plaintiff, Appellant: Baboo Sreenath Banerji.
For Defendant, Respondent: Baboo Doorga Persaud.

This case was referred to a Full Bench by L. S. JACKSON and WHITE, J.J., on 10th May 1877, with the following observations :