JUDGMENT

G. D. Sahgal, J. - This is a defendant's second appeal against whom a suit for ejectment has been decreed by both the courts below and also for rent and damages, the claim of rent and damages being decreed only against defendant-appellant No. 1.

2. The allegations in the plaint were that the plaintiff-respondent had purchased the house in question from one Smt. Lallo Bibi who was the original landlord. She had tenanted a portion of the house to defendant-appellant No. 1 who became the tenant of the respondent after the sale of the house in his favour by the original landlord. Defendant-appellant No. 1 has been allotted accommodation in the compound of the Colvin Taluqdars' College where he is employed and defendant-appellants 2 and 3 were said to have been allowed to occupy these premises as sub-tenants. The tenancy was accordingly terminated on account of the premises having been sub-let and the premises having not been vacated, the suit was filed giving rise to this appeal for the ejectment of the defendants and for arrears of rent and damages. As pointed out above, the suit was decreed by both the courts below for ejectment and as to arrears of rent and damages it was decreed against Defendant-appellant No. 1 the original tenant alone.

3. The plea of the defendants was that defendant No. 1 had been living alone with defendants 2 and 3 in the house for the past 15 years; that defendant No. 2 was a brother-in-law (wife's brother) of defendant No. 1 and defendant no.

3 was the wife of defendant No. 2. Their case was that the premises were never sub-let by defendant No. 1 to defendants 2 and 3 and that the plaintiff was not entitled to evict them. Defendants 2 and 3 who filed a separate written statement also denied the sub-tenancy. A plea was also raised to the effect that the matter of sub-tenancy was not raised in an earlier suit (Suit No. 182 of 1963) filed by the original landlord Smt. Lallo Bibi against defendant no. 1 which was dismissed and as such the question of sub-letting stands concluded against the plaintiff-respondent as constructive res judicata. None of these pleas found favour with the two courts, the plea of res judicata being not taken up before the appellate court at all and the suit was decreed.

4. First let us consider as to whether the decision in the earlier suit being Suit No. 182 of 1963 acts as res judicata as to the plea of sub-letting taken by the plaintiff-respondent in this suit for the ejectment of the appellants. That suit was filed on the 9th of April 1963 against defendant-appellant No. 1 and one Dhanpat Rai. That suit was filed by Smt. Lallo Bibi and was for ejectment of defendant-appellant No. 1 on the ground of nuisance. There was also a plea in that case to the effect that defendant-appellant No. I had committed default of payment of rent. That suit was dismissed on the 17th of January, 1966. Reliance is placed on Explanation IV to section 11 of the Code of Civil Procedure for advancing the argument to the effect that the plea that the premises had been sub-let by defendant No. 1 to defendants 2 and 3 could have been taken by the then landlord Smt. Lallo Bibi in that suit as being another cause of action for, the reliefs claimed in that suit.

5. Explanation IV to section 11 of the Code reads : "Any matter which might and ought to have been made ground of defence of attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit."

6. The question is as to whether the plea of subtenancy could be a ground of attack in the former suit. According to the statement made by defendant-appellant No. 2 under Order 10, Rule 2 of the Code of Civil Procedure on the 9th of May, 1968 he and his wife live in the house, defendant no. 1 having ceased to live in the house, for about a year and a half. Apart from the fact that this statement on behalf of Defendant No. 2 is not binding on Defendant No. 1 it only means that defendant no. 1 continued to l