A finding in an earlier suit that a defendant was not a tenant operates as res judicata in a subsequent suit for possession of the same premises.

1. - This appeal under Section 96 CPC is directed against judgment and decree dated 21.08.2010 passed by Additional District Judge No. 1, Bikaner, whereby, the suit filed by the plaintiff-respondent Madan Lal seeking possession of the suit premises and mesne profit has been decreed.

2. The facts in brief may be noticed thus: the respondent filed a suit on 13.12.1999 seeking possession of the suit property and mesne profit; it was averred that the suit premises were situated at Fad Bazar, which was let out by the adoptive father of the plaintiff Shri Ram Dev to Shri Amar Chand on 28.03.1969 and, on account of compromise, the premises were vacated and the same was handed over to the plaintiff on 04.11.1997; on 14.11.1997 Amar Chand's real brother Shanker Lal-defendant trespassed on the premises and before the plaintiff could take any action, the defendant-Shanker Lal filed a suit on 18.11.1997 for declaration that he be declared tenant and injunction that without adopting due process, he be not evicted; the said suit was partially dismissed on 24.11.1999 holding that Shanker Lal was not entitled for being declared as tenant, he was in possession since 14.11.1997 and injunction was granted that without adopting due procedure, he be not evicted; it was alleged that the defendant was requested many times after 24.11.1999 to hand over the possession, however, he refused to hand over the possession; it was prayed that as by decree dated 24.11.1999 plaintiff has been directed not to take possession without adopting due procedure of law, the suit for possession and mesne profit was being filed and mesne profit @ Rs. 1,000/- per month was claimed.

3. A written statement was filed by Shanker Lal and it was claimed that the suit was not maintainable; he was in possession of the suit shop as tenant since 1978; earlier the rent was Rs. 250/- per month, which was Rs. 350/- now; on refusal to receive rent, the same was being deposited under Section 19A of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950; the execution of the rent note dated 28.03.1969 and the compromise dated 04.11.1997 were disputed and it was claimed that both the documents were forged. Ultimately, it was prayed that the suit be dismissed.

4. The trial Court framed four issues and after evidence was led by the parties by judgment and decree dated 19.11.2004, it came to the conclusion that as the judgment dated 24.11.1999 was pending appeal, the same would not operate as res judicata and came to the conclusion that the plaintiff failed to prove that the defendant Shanker Lal had illegally trespassed on the suit premises on 14.11.1997 and consequently dismissed the suit.

5. Feeling aggrieved, the appellant filed review petition, which was rejected by the trial Court on 31.01.2005. The judgment and decree dated 19.11.2004 was challenged by way of filing S.B. Civil Regular First Appeal No. 590/2005 by the plaintiff and this Court by judgment dated 13.12.2007 came to the conclusion that as the impugned judgment dated 19.11.2004 was mainly based only on the ground that the order of the trial Court dated 24.11.1999 could not be said to be final in view of pendency of second appeal at that time and the said second appeal having been decided and special leave petition having been dismissed, the judgment and decree dated 19.11.2004 was set aside and the matter was remanded back to the trial Court.

6. After the present suit was remanded to the trial Court, an application under Order 6, Rule 17 CPC was filed by the plaintiff and the plaint was amended and the allegations contained in para 3 of the original plaint, regarding the trespass by the defendant were deleted and it was claimed that in view of the judgment passed by the trial Court on 24.11.1997, which was upheld in the first appeal, second appeal and the special leave petition, the defendant was a trespasser and the plaintiff was entitled for possession of the suit property and in pursuance to the decree date