A finding of tenancy in an earlier suit operates as res judicata in a subsequent suit for injunction, and the party against whom the finding is recorded has a right of appeal even though the ultimate decision may be in his favor.

1. This second appeal has been filed by the defendant against the judgment and decree of the Additional District Judge, Ambala dt. 15th Dec. 1983.

2. Briefly the case of the plaintiffs is that they took a shop in dispute on rent from Kul Bhushan son of Dal Chand at the rate of Rs. 30.00 per mensem on 16th Sept. 1971 and since then they had been in occupation thereof. They were working as tailors in the name of Vijay Tailors.

3. It is further pleaded that the plaintiffs, at the request of the defendant, started giving him work on contract basis who used to do the work at his own and returned the same in a day or two. Sometimes they allowed him to sit in the shop to do the job. Subsequently the defendant joined hands with Sushil Chand, younger brother of Kul Bhushan, and obtained fictitious receipts of tenancy from him. On the basis of those receipts he instituted a suit against the plaintiffs for permanent injunction restraining them from taking possession of the shop from him. In the suit it was held by the Court, vide judgment dt. 29th April, 1978, Exhibit A. 4, that the plaintiffs were tenants in the shop and the defendant had no concern with it. However, in view of the finding that he was in occupation, a decree was passed in his favour to the effect that he could not be dispossessed from the shop except in due course of law. That judgment, it is pleaded, operates as res judicata between the parties and the defendant again cannot take the plea that he was a tenant in the shop under Sushil Chand. Consequently, they filed a suit for mandatory injunction directing the defendant to deliver the vacant possession of the portion of the shop to them.

4. The suit was contested by the defendant. He, inter alia, pleaded that he had taken the shop on rent from Sushil Chand son of Dal Chand about six years ago and since then he had been in its possession. He controverted other allegations of the plaintiffs.

5. The trial Court did not give any decision whether the previous judgment operated as res judicata between the parties but held that the defendant was a licensee in the shop under the plaintiffs. In view of the said finding it decreed the suit in favour of the plaintiffs. The defendant went up in appeal before the Additional District Judge, Ambala. The Appellate Court affirmed the judgment and decree of the trial Court on the ground that the earlier judgment between the parties operated as res judicata.

6. Mr. Sharma has vehemently argued that the earlier case was decreed in favour of the appellant and, therefore, he could not file an appeal against that. He submits that in that situation the finding of the Court that the appellant was not a tenant in the shop but a licensee under the respondents cannot operate as res judicata between the parties. In support of his contention he places reliance on M/s. N. Ecko Dry Cleaners V/s. Ram Kishan Ahuja, (1984) 1 Rent LR 601 (Delhi). He further argues that even if the finding regarding tenancy had been in favour of the appellant, the relief that could be granted to him would have been the same. In view of the aforesaid circumstances the adverse finding could not operate as res judicata between the parties. To fortify his argument he made reference to Arjun Singh V/s. Tara Das Ghosh, AIR 1974 Pat 1 (FB) and Smt. Ganga Bai V/s. Vijay Kumar, AIR 1974 SC 1126.

7. I have duly considered the argument but regret my inability to accept it. I have carefully gone through the judgment, Exhibit A. 4, wherein the Court held that the plaintiff (now defendant) was not the tenant in the shop but he was sitting in it for the last several years with the leave of the defendants (now plaintiffs). After recording that finding, the relief of injunction was granted. From the finding, it is clear that the Court came to the conclusion that the appellant was a licensee under the respondents in the shop and his plea that he was a tenant was rejected. Section 11 of the Civil P.C. (hereinafter referred to as the