JUDGMENT R.L. Khurana, J. :- The appellant before this Court is the defendant. He is aggrieved by the judgment and decree dated 22.9.1994 of the learned District Judge, Shimla, affirming the judgment and decree dated 6.3.1990 of the learned Sub Judge 1st class (4), Shimla.

2. The subject matter of the dispute between the parties comprises of a two storeyed house and a single storeyed kitchen located in the land measuring 3 biswas comprising in khasra No.369, khewat No.3 and khatauni No.4 in village Chhakrail, Pargana Majhola, Tehsil and District Shimla, hereinafter referred to as the property in dispute.

3. Smt. Mathi and Smt. Sunehroo daughter of Parsu, claiming themselves to be the owners of the property in dispute on the allegations that the defendant was coming in possession thereof since 1968 without any right, title or interest therein. They also claimed mesne profits/damages/compensation amounting to Rs.500/- for the use and occupation of the property in dispute by the defendant at the rate of Rs. 15/- per month.

4. The defendant while resisting the suit asserted that he was coming in possession of the property in dispute under an agreement dated 14.8.1965 that previously also a suit was filed against him, being civil Suit No.31-1 of 1969 for possession of the property in dispute by way of his ejectment on the allegations that he was a tenant in respect of the property in dispute. In such suit the pica taken by the defendant was that the property was let out to him along with some agricultural land. No independent tenancy qua the property in dispute was created. Such suit was dismissed. It was further pleaded that the suit was barred by principle of res judicata as well as under order 2 rule 2, Code of Civil Procedure. An objection as to jurisdiction of civil Courts was also raised.

5. On the pleadings of the parties, following issues were framed by the learned trial Court:-

1. Whether the plaintiff is entitled to the possession of the suit land as alleged? OPP.

2. If Issue No.l. is decided in affirmative then whether the plaintiff is entitled to mesne profits of Rs.500/-? OPP.

3. Whether the suit is barred by res-judicata? OPD.

4. Whether the suit is barred under Order 2 rule 2 CPC as alleged? OPD.

5. Whether the civil court has no jurisdiction to entertain the present suit as alleged? OPD.

6. Relief.

6. Be it stated that Smt. Sunehru one of the plaintiffs above named died on 13.1.1987 during the pendency of the case in the courts below. The surviving plaintiff Smt. Mathi was her only legal heir who had succeeded to the estate of the deceased. Therefore, in terms of Order 22 Rule 2, Code of Civil Procedure, the suit proceeded at the instance of the surviving plaintiff Smt. Mathi.

7. The learned trial Court found issues No.l and 2 in favour of the plaintiff and issues No.3 to 5 against the defendant. Consequent upon such findings the suit of the plaintiff for possession and recovery of mesne profits to the tune of Rs.500/- was decreed vide judgment and decree dated 6.3.1990. The appeal carried by the defendant before the learned District Judge was dismissed on 22.9.1994. The learned District Judge agreed with the findings of the learned trial Court on all the issues.

8. The present second appeal was admitted for hearing on 22.3.1995 on the following substantial questions of law:-

1. Whether a subsequent suit for possession on the basis of title is barred by principles of res-judicata when earlier suit on the basis of tenancy stands finally dismissed with regard to suit property?

2. Whether the plea available to plaintiff in the earlier suit is not taken, is barred by the provisions of Order 2 Rule 2, Code of Civil Procedure?

3. Whether a person put in possession in part performance of an agreement can be ousted by the owner who has inducted him under Section 53-AC of the Transfer of Property Act?

4. Whether civil court has no jurisdiction in case defendant is found to be inducted as tenant in agricultural land along with house mentioned

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