A finding in a previous suit that both the plaintiffs were the landlords did not operate as res judicata in the subsequent suit where the issue of whether both the plaintiffs were the landlords or not could not arise in the earlier suit on the basis of pleadings of the parties.

This appeal arises out of the judgment and decree passed by the learned Additional District Judge, 4th Court, Alipore, in Title Appeal No. 2 of 1975 affirming the judgment and decree passed by the learned Munsif, 3rd Court of Sealdah, in Title Suit No. 4 of 1973. The defendant No. 1, is the appellant and the said Title Suit. No. 4 of 1973 was instituted by the plaintiff-respondents Nos. 1 and 2, Smt. Puspa Rani Ghose and her husband, Jatindra Nath Ghose against the defendant No. 1, Sukumar Bose and also impleading his son, viz. Biswaranjan Bose for eviction of the defendant No. 1 from the suit premises and for recovery of possession of a shop room comprising the tenancy in question.

2. The case of the plaintiffs was, inter alia, that the defendant No. 1 was inducted as a tenant in respect of the said shop room but his tenancy was determined by a valid notice to quit but as the name of the son of the defendant No. 1 also appeared on a signboard of the said shop room he was also impleaded as a proforma defendant. It may be stated in this connection that prior to the institution of this suit, the plaintiffs also instituted another suit for eviction against the said defendant No. 1 which was numbered as Title Suit No. 225 of 1970. In the said suit, the present plaintiffs also claimed that the defendant, Sukumar Bose was a monthly tenant at a rental of Rs. 30/- payable according to the English Calendar and that the said tenancy was determined by a notice to quit. The defendant, Sukumar Bose also contested the said suit but the suit was decreed by the learned Munsif in favour of the plaintiffs and the defendant then preferred an appeal against the said judgment and decree of the learned Munsif and the appeal was registered as Title Appeal No. 216 of 1972. It was held by the Appeal Court that both the plaintiffs were the landlords of the defendant in respect of the disputed room but the appeal was allowed by the Appeal Court because it was held by the Appeal Court that the notice determining the tenancy on the basil of which the suit was instituted was invalid. It may also be noted in this connection that in the plaint of the said suit, there was an averment to the effect that both the plaintiffs were the landlords but such averment was not disputed specifically by the said Sukumar Bose in his written statement made in the earlier suit and accordingly on the doctrine of non-traverse of pleadings, it was held that the defendant had admitted the case of the plaintiff, in the said suit that both the plaintiffs were his landlords.

3. However, after the unsuccessful attempt, in the said previous suit, both the said landlords instituted the instant Title Suit No. 4 of 1974. The defendant No. 1 in his written statement made in the instant suit contended that he was inducted as a tenant by the plaintiff No. 1, Sm. Puspa Rani Ghose but not by her husband Jatindra Nath Ghose and the defendant No. 1 also contended that the said Jatindra Nath Ghose and the said Biswaranjan Bose, namely, the son of the defendant No. 1 should not have been impleaded as plaintiff No. 2 and defendant No. 2 respectively. The learned Munsif observed that it was held in the earlier suit by the Court of Appeal below that both the plaintiffs were the joint landlords of the said defendant Sukumar Bose but the suit was dismissed by the Court of Appeal below only on the ground that the notice determining the tenancy was invalid. The learned Munsif was of the view that in such circumstances the finding made by the Court of Appeal below in the earlier suit that both the plaintiffs were the landlords of the defendant would operate as res-judicata on the similar question raised in the instant suit. It was held by the learned Munsif that although in the earlier suit no specific issue was framed as to whether both that plaintiffs were the landlords of the defendant or not but the matter was considered both by the trial court and the Court of Appeal below and accordingly und