A mere finding in a previous suit does not operate as res judicata if the party did not have an opportunity to appeal against it.

JUDGMENT & ORDER :

MRIDUL KUMAR KALITA, J.

1. Heard Mr. B. D. Deka, learned counsel for the petitioner. Also heard Mr. P. Upadhyay, learned counsel for the respondent.

2. This revision petition under Section 115 of the Code of Civil Procedure, 1908 has been preferred by the petitioner, namely, Sri Amiya Kumar Bhattacharyya, impugning the judgment and decree dated 06.08.2018 passed by the learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 22/2016, whereby it allowed the appeal and set aside the judgment and decree dated 08.02.2016 passed by the learned Munsiff No. 2, Kamrup(M) at Guwahati in Title Suit No. 65/2011.

3. The facts relevant for consideration of the instant revision petition, in brief, are as follows:-

i. That the present respondent, namely, Sri Bichitra Bhagawati as plaintiff had instituted a Title Suit No. 65/2011 for ejectment of the present petitioner/defendant from a tenanted “Tin-Chali House” measuring about 24 Ft. in length and 20 Ft. in breadth standing over a plot of land, measuring 2 Kathas, covered by Dag No. 15 of Village-Maidamgaon under Mouza-Beltola, Kamrup(M), Guwahati. The present respondent/plaintiff also prayed for relief for permanent injunction as well as realization of arrear rent from the present petitioner.

ii. In the plaint filed by the respondent before the Trial Court in Title Suit No. 65/2011, it has been pleaded that the present petitioner/defendant is the brother-in-law of the plaintiff and the aforementioned “Tin-Chali House” was let out to the present petitioner/defendant by the respondent/plaintiff in the year 1994 and there was a verbal agreement between them for a payment of monthly rent, which was fixed at Rs.300/- in the year 2004, which was payable within the first week of the succeeding month. It was further pleaded in the plaint that the defendant/petitioner paid the monthly rent up-to 30.06.2006 and thereafter he stopped payment of rent and on this he was asked to vacate the tenanted premises. However, when he did not leave the tenanted premises, the present respondent/plaintiff filed an ejectment suit and also prayed for realization of arrear rent of Rs.3600/- for the period of 01.07.2006 to 30.06.2007. The said suit was registered as Title Suit No. 400/2007. The said suit was also contested by the present petitioner/defendant by filing a written statement.

iii. In the said Title Suit No. 400/2007, the present petitioner/defendant contended that 1 Katha 5 Lecha of land was purchased by him at Village Garbhanga in the year 1990 and since then he was in possession over said 1 Katha 5 Lecha of land by constructing an Assam type house on the said land. It was also contended that he was not staying in the rented premises of the present respondent/plaintiff and there was no question of payment of house rent. The said suit (Title Suit No. 400/2007) was dismissed by the Trial Court and the present respondent/plaintiff preferred an appeal challenging the judgment of the Trial Court. The appeal was registered as Title Appeal No. 47/2010. The said appeal was dismissed by the judgment dated 29.11.2010 by the learned Civil Judge No. 2, Kamrup(M), Guwahati in Title Appeal No. 47/2010 on the ground that the default by the present petitioner/defendant could not be proved in the title suit. However, the Appellate Court held that the present petitioner/defendant was a tenant under the respondent/plaintiff in respect of the scheduled premises. None of the party challenged the judgment dated 29.11.2010 passed by the Appellate Court.

iv. The present respondent/plaintiff has pleaded in the plaint, which he had filed in Title Suit No. 65/2011, that after the judgment of the Appellate Court in Title Appeal No. 47/2010, which held that the present petitioner/defendant is a tenant of present respondent/plaintiff, the rent for the month of December, 2010 became due in the next month. However, he failed to pay the same in spite of the demand for the payment by the present respondent/plaintiff.