JUDGMENT

R. M. SAHAI, J.:— In this appeal by grant of special leave directed against judgment of the Allahabad High Court in second appeal arising out of a suit for arrears of rent and ejectment, the question is if the High Court committed any error of law in allowing the second appeal on the ground that the two courts below had erroneously held that finding recorded in an appeal, filed by one of the defendants who was sued as tenant in an earlier suit, could not operate as res judicata between plaintiff and respondents who were defendants Nos. 2 and 3 in that suit.

2. Unfortunately for appellant equity may or may not be in his favour as his father too acted shrewdly while purchasing house of daughter-in-laws father, law is certainly not in his favour. How dispute arose between parties, who are closely related, is quite interesting. Shiv Charan Das and Har Charan Das (respondents Nos. 1 and 3 in this appeal) are first cousins. Ravindra Kumar (respondent No. 2) is son of Shiv Charan. His sister was married to son of Ganga Prasad who purchased the only house of Shiv Charan and Ravindra Kumar with condition of repurchase by sellers after five years. He permitted them to remain in possession, but got a rent note executed by Har Charan. Purpose of this became apparent later as immediately after expiry of five years when the house was not repurchased Ganga Prasad (referred hereinafter as plaintiff) filed suit for ejectment and arrears of rent against Har Charan, Shiv Charan and Ravindra (hereinafter referred as defendants Nos. 1, 2 and 3) claiming that defendant No. 1 was in arrears of rent and defendants Nos. 2 and 3 were his sub-tenants. The suit was contested by defendants Nos. 2 and 3 only. The Trial Court decreed the suit for arrears of rent against defendant No. 1. It was held that defendants Nos. 2 and 3 were not sub-tenants. Therefore suit for ejectment was dismissed. The plaintiff submitted to this finding. Aggrieved by the decree for arrears of rent defendant No. 1 filed appeal which was dismissed. But the appellate court while observing that any evidence led by defendants Nos. 2 and 3 could not be read against defendant No. 1 observed that it appeared that they being closely related to defendant No. 1 were in possession on his behalf. This furnished occasion for plaintiff to file second suit against three defendants with this change that defendants Nos. 2 and 3 were claimed to be licensees of defendant No. 1. The Trial Court relying on earlier judgment decreed suit for arrears of rent against defendant No. 1. and for ejectment against defendants Nos. 2 and 3 as they were licensees. Both defendant No. 1 separately and defendants Nos. 2 and 3 jointly filed two appeals but without any success. Both the sets approached the High Court also by way of separate appeals. The appeal of defendant No. 1 came up for hearing earlier but it was dismissed.

3. The appeal of defendants Nos. 2 and 3 came up for hearing before another Honble Judge who allowed it and held that the finding recorded in appeal arising out of earlier suit that they were licensees did not operate as res judicata and the suit for ejectment was dismissed. It is the correctness of this finding that has been assailed in this Court.

4. Although long arguments were advanced but in our opinion the only question that arises for consideration is if the finding recorded in the appeal filed by defendant No. 1 in which it was held that defendants Nos. 2 and 3 were in possession on his behalf was binding on them in the subsequent suit filed by the plaintiff. In that suit issue No. 2 was if defendant No. 2 and defendant No. 3 were sub-tenants. And issue No. 5 was if they were liable to be ejected. The Trial Court while discussing these two issues held that there was no question of sub-tenancy of these persons as despite sale there was never a break in their possession. It was further held that they were not sub-tenants nor they claimed to be in possession through defendant No. 1.