1970 Supreme(All) 154

Allahbad High Court
K.B.ASTHANA
Raj Kumar - Appellant
Versus
Gopi Nath Varman - Respondent
Decided On : 12/04/1970

Headnote:

RES JUDICATA - U. P. ACT III OF 1947 - SECTION 7-E - FINDING OF TENANCY - EFFECT - SUBSEQUENT SUIT FOR EJECTMENT - BAR OF RES JUDICATA.

Fact of the Case:

The plaintiff-landlord filed a suit for dispossession of the defendants from a small shop situate in the town of Chunar. The disputed shop was a portion of the larger building of which the plaintiff was the owner. The defendants' grand-father and grand uncle were the tenants in a portion of the said premises and in the north west corner thereof carried on a betel shop. Sometime in 1956 the premises being in a bad state of repairs fell down and the plaintiff re-constructed the premises as pucca. The defendants' father Panna Lal occupied the north west portion of the freshly constructed premises and carried on the usual betel shop. The plaintiff brought a suit against the predecessor of the defendants in the court of Small Cause, Mirzapur for recovery of arrears of rent. The defendants raised a contest in that suit and pleaded that they were not liable to pay any rent after 8-7-1955 as they had to vacate the shop it having fallen down and the plaintiff having not carried out the terms of the agreement that he will re-erect the shop and will give possession of it to them. The suit was decreed to the extent of admission by the defendants of that suit, that is, for recovery of rent up to 8-7-1956. The plaintiff thereafter appears to have carried the re-construction operations and it is not known from the record when the same were really completed. The plaintiff alleged in his plaint in the instant suit that on 1-9-1964 when the shop had not been completely re-constructed Pannalal, father of the defendants-appellants, trespassed and took forcible possession. The plaintiff prayed for a decree of possession. The defence pleaded was that Pannalal was not a trespasser but was in possession of the disputed shop as a tenant, the tenancy having been continued in the family from the time of their predecessors for a period of thirty years or so. It was also pleaded that the defendant was not only the tenant of the north-west portion as alleged in the plaint but of the whole of the bigger building of which it was a portion. It was specifically pleaded that the judgment of the Munsif in the Miscellaneous Case No. 122 of 1965 under Section 7-E of the U. P. Act III of 1947 in which a finding was recorded after contest that Pannalal was the tenant in the premises in dispute will have the effect of res judicata and the plaintiff was not entitled to re-agitate the question of tenancy and would not, in law, be permitted to establish that the defendant Pannalal was not a tenant but a mere trespasser.

Finding of the Court:

The court held that the finding recorded by the Munsif in Miscellaneous Case No. 122 of 1965 under Section 7-E of U. P. Act III of 1947 after a contest to the effect that Pannalal was the tenant of Gopinath, the plaintiff in the premises in suit which included the shop in dispute would operate as res judicata and in this suit the plaintiff was not entitled to re-open and reagitate that question.

Issues: Whether the finding of the Munsif in Miscellaneous Case No. 122 of 1965 under Section 7-E of U. P. Act III of 1947 to the effect that Pannalal was the tenant of Gopinath, the plaintiff in the premises in suit which included the shop in dispute would operate as res judicata and in this suit the plaintiff was not entitled to re-open and reagitate that question.

Ratio Decidendi: The court held that the finding recorded by the Munsif in Miscellaneous Case No. 122 of 1965 under Section 7-E of U. P. Act III of 1947 after a contest to the effect that Pannalal was the tenant of Gopinath, the plaintiff in the premises in suit which included the shop in dispute would operate as res judicata and in this suit the plaintiff was not entitled to re-open and reagitate that question. The court observed that the Munsif exercising jurisdiction under Section 7-E of U. P. Act III of 1947 is a court of concurrent jurisdiction with the Munsif ordinarily trying suits under C. P. Code. The court further observed that a Munsif exercising jurisdiction under Section 7-E of the said Act is not a special Tribunal or a distinct Authority. He is even then a court of ordinary civil jurisdiction. The court also observed that the general principles of res judicata are not different from what is known as 'estoppel by record' which doctrine is based on the maxim "interest reipublicae ut sit finis litium". When a matter has been determined by a judgment in its nature final then, the same matters inter partes will not be allowed to be re-agitated in a subsequent proceeding provided of course the prior court was competent to adjudicate upon such a matter.

Final Decision: Appeal allowed.