The decision of a Small Cause Court in a proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882, would not conclude the issue on the question of title claimed by the plaintiff and his subsequent suit based on such a claim would not be barred either under Section 11 of the Code of Civil Procedure, 1908, or under the general principles of res judicata.

( 1 ) THIS is an appeal by the plaintiff and is directed against the judgment and decree dated November 24, 1981, passed by the learned Judge, 2nd Bench, City Civil Court, Calcutta in Title Suit No. 999 of 1980. That was a suit under Section 49 of the Presidency Small Cause Courts Act, 1882 as adopted for the State of West Bengal. By the judgment under appeal, the learned Judge has dismissed the suit on a preliminary issue holding the suit to be barred by principles of res judicata and the only point raised now before us is how for the learned Judge is right in his conclusion as such. It would be necessary to refer to the facts with reference to which such a plea was raised and those are set out shortly as fellows :

( 2 ) THE defendant-respondent Kalyan Kumar Roy (hereinafter referred to as the defendant) was admittedly the tenant in respect of the suit premises, being Suit No. 18 on the 3rd floor of premises No. 26, Chowringhee Road, Calcutta, under the Official Trustee of West Bengal as the Trustee to the Trust Murshidabad Estate (hereinafter referred to as the Official Trustee ). In the year 1974, the Official Trustee instituted Ejectment Suit No. 1152 of 1974 against the defendant on two-fold grounds of default in payment of rent and wrongful subletting of the suit premises without the written consent of the landlord. In the plaint, the Official Trustee pleaded that the combined notice to quit and a notice of suit was duly served upon the defendant by registered post when such notice was accepted by one Mrs. P. Maitra for and on behalf of the defendant on February 12, 1974.

( 3 ) THE defendant in contesting the suit denied all the material allegations including the allegation of default and subletting. The defendant also catefiori- cally denied service of the notice. In a proceeding under Section 17 (2) of the West Bengal, premises Tenancy Act, the defendant however, deposited all the arrears of rent in order to entitle him to claim relief under Section 17 (4) of the West Bengal premises Tenancy Act.

( 4 ) DURING the pendency of the afore-said suit for ejectment, the defendant, Kalyan Kumar Roy, in his turn instituted a proceeding under Section 41 of the Presidency Small Cause Courts Act, 1882, against the present appellant Debabrata Mukherji for recovery of possession of the suit premises from him. He claimed that he had allowed the appellant to occupy the same as a licensee but even after termination of such licence, the appellant was refusing to vacate. This proceeding was registered as S. C. C. Suit No. 2406 of 1975 of the 4th Bench of the Court of Small Causes, Calcutta. The appellant appeared to contest the aforesaid proceeding on the plea that he was not a licensee but was a sub-tenant in exclusive possessior of the suit premises since August, 1962.

( 5 ) HAVING taken such a defence in the said proceeding, the appellant, filed an application under Order 1, Rule. 10 (2) of the Code of Civil Procedure for being added as a party defendant in the suit of the Official Trustee, being Ejectment Suit No. 1152 of 19741. In this application the appellant alleged that he is a necessary party in the suit as he is in exclusive possession of the suit premises since August. 1962 by virtue of a sub-tenancy created in his favour by the defendant. His prayer was allowed. He then filed a written statement claiming himself to be a sub-tenant under the defendant since August, 1963. The defend-ant in his turn filed a rejoinder disputing such a claim put forward by the appellant, the added defendant to that suit. As a next step the appellant moved an application under Section 10 read with Section 191 of the Code of Civil Procedure in the proceeding, under Section 41 of the presidency Small Cause Courts Act, for stay of the said procceding on the ground that the very issue involved in the said proeeeding was then awaiting decision on adjudication in Ejectment Suit No. 1152 of 1974, of the Official Trustee. The learned J