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1870

BABoo МонAN
LAL BHAYA

GYAL

LACHMAN

LAL.

6

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The Subordinate Judge of Gya raised, inter alia, the following issue :

" Whether sections 2 and 3, Act VIII of 1859, apply to this case, and with what result ?"

He said as follows:–« On a reference to the decision of this Court, dated the 24th February 1864, in the case of this very plaintiff against Inderkumari Dai and others, it appears that this very plaintiff instituted the suit mentioned in the said decision, in respect of the property now in suit, alleging it to be the estate of his maternal uncle, Sitaram, deceased. In the said case, this issue was laid down, viz., whether,

as alleged by plaintiff, it is true that, after the demise of • his maternal uncle, Sitaram Meherwar, the right to succeed • him devolved, by the dharm shastras prevailing in the province

of Behar, on plaintiff; or, as alleged by defendant, Inderkumari Dai, is it true and correct that, during her life-time, no

right accrues to a sister's son according to the shastras pre'vailing in the countries of Benares and Mithila?' The former Judge of this Court, by the said decision, made a decree in favor of plaintiff in these terms:— Mussamat Inderkumari Dai,

defendant, should, during her life-time, hold possession of the • decreed property, the estate of Sitaram Meherwar, without ' power to waste, and, after the demise of the said lady,

plaintiffs will be entitled to hold possession of the estate of • the said deceased person.'

“ On a reference to a copy of a judgment of the High Court, dated the 1st September 1864, in a case in which Mussamat Inderkumari Dai, the defendant in the case mentioned in the decision of the 24th February 1864, was appellant, and this very plaintiff, respondent, it appears that the Honorable Judges held that the plaintiff, that is, Mohan Lal, did not establish his right of action; that the lower Court's findings regarding the character of the defendant's estate, and further as to the plaintiff being, after the demise of the widow, entitled to obtain possession, were extrajudicial, and that the proper order was one of dismissal instead of decree; and accordingly they admitted the appeal, that is, reversed the decision of the first Court. “ With reference to the features of the case, the allegations in

1870

LAL BHAYA

GYAL

.

the previous and present suits of plaintiffs, the subject-matter of BABOO Mohan the suit, and the facts that, in the previous suit, the disputed pro

perty was the estate of Sitaram ; that the disputed property in LACHMAN the present suit is (according to the examination of plaintiffs’

pleader in Court) represented to be the estate of the said Sitaram ; that in the previous case, the present plaintiff was plaintiff,

I
and Mussamat Inderkumari Dai, defendant; and that in this case,
the said plaintiff is plaintiff, and the locum tenens of defendant,
Inderkumari Dai, is defendant."

He accordingly dismissed the suit with costs.
The plaintiffs appealed to the High Court.

Baboo Mahes Chandra Chowdhry, for the appellant, contended that section 2, Act VIII of 1859, did not apply, and cited Sudanund Mohapattur v. Soorjo Monee Debee (1), Mahima Chandra Chuckerbutty v. Rajkumar Chuckerbutty (2), Mussamut Edun v. Mussamut Bechun (3), Kanhya Loll v. Radha Churn (4), Kriparam v. Bhagawan Das (5), Ooma Churn Dutt v. Beckwith (6), Janeswar Das v. Gulzari Lal (7),

(1) 8 W. R., 455.

several pleas raised by them, was untrust(2) 1 B. L. R., A. C., 1.

worthy. The decision of the Court of first (3) 8 W. R., 175.

instance was therefore affirmed. The first (4) 7 W. R., 338.

point taken in special appeal is that the (5) 1 B. L. R., A. C., 68.

question of whether the tenure purchased (6) 5 W. R., Act X Rul., 3.

by the plaintiff was a mokurrari tenure or (7) Before Mr. Justice Kemp and Mr. Justice not having been adjudicated upon by the Glover.

Revenue authorities, no suit will lie in the JANESWAR DAS v. GULZARI LAL.

Civil Court to set aside the decision of

the Revenue Court. On this point we The 8th March 1869.

find that there was no adjudication in an KEMP, J.-In this suit the plaintiff, spe- issue raised in the Act X suit upon the cial respondent, snes for confirmation of validity of the mokurrari tenure. The title and declaration of possession under decision of the Revenue authorities was a deed purchasing the mokurrari rights of conclusive of the cause of action then the defendant, No. 3. Defendants Nos. 1 heard and determined, and nothing furand 2 alleged that the deed, under which ther. The issue tried by the Collector the plaintiff claims, is a fraudulent deed, was the amount of rent for which the and that the holding is a khasht-kari one. defendant in the Act X snit was liable. The Judge holds that the deed under The mokurrari potta may have come which the plaintiff claims, viz., a mokorrari collaterally in issue in the Act X suit sanad, has been sufficiently and clearly for the purpose of enabling the Court to proved ; and that the plea in bar set up by adjudicate upon the question of the the defendants Nos. 1 and 2, that the suit amount of rent due by the defendant in of the plaintiff is beyond time, was unten- that suit. But there was no decision upon able, and that the evidence adduced by the validity or otherwise of the mokurrari defendants Nos, 1 and 2, in support of the by which the plaintiff is estopped,

.

Tekaitni Gowra Kumari v. The Bengal Coal Company (1).

1870

Влвоо МонAN (1) Before Mr. Justice Kemp and Mr. to the plaintiff, and the plaintiff's suit LAL BHAYA

GYAL
Justice E. Jackson.

was consequently barred by the Law of
Limitation.

With LACIIMAN TEKAITNI GOWRA KUMARI (PLAIN

LAL. TIFF) v. THE BENGAL COAL COM

reference to the next point raised by PANY (DEFENDANTS).

Mr. Paul, I am of opinion that the

judgment in the rent suit passed by the 4th February 1870.

Moonsiff in the year 1860, and confirmed JACKSON, J.-The plaintiff brought on appeal by the Principal Assistant Comthis suit to recover possession of Kul- missioner of Hazaribagh in the year dia Gadi Karbarbari, Pergunna Khar- 1861, is not couclusive evidence in the rakdea, from the defendants. The plain- present suit. The subject-matter of that tiff stated that the defendants, Piru Ku- litigation was the question whether any mari and others, were in possession of arrcars of the rent were due to the plainthis estate under temporary leases, the tiff from the defendants. It was alleged term of which had expired, and that she that, for the three years 1264, 1265, and was consequently entitled to dispossess 1266, a few rupees of rent had remained them ; but the defendants had got up in unpaid in each year. In order to decide a former rent suit a false mokurrari tenure this question, it became necessary to enof the estate, and had granted a sub-lease quire into the validity of the leases now to the other defendants, the Bengal Coal set up by the plaintiff, and which he then Company, and under color of the said

set up, and also into the validity of the false mokurrari were preventing her mokurrari potta which the defendants now from obtaining possession of Mauza Kul- set up, and which they then brought into dia. The plaintiff, accordingly, sued to Court. The contest as to whether the oust the defendants, and to obtain mesne alleged arrears of rent were due, in fact profits from them. The defendants, Piru turned upon the question of these docuKumari and others, in answer stated that ments. In order then to decide as to they and their ancestors had held the the arrears of rent, the Courts went into village of Kuldia in mokurrari for gene- evidence as to the genuineness of the rations, and that Bahadur Sing, an an- documents. But the decision which they cestor of the plaintiff, had confirmed then arrived at is not conclusive in the their mokurrari rights by the grant of a present suit in which the plaintiff claims potta in the year 1201, to their ancestor, to recover the village, a property valued Kripal Sing, and that they had all at nearly two lakhs of rupees. It is along held possession, and had given a stated that this decision forms what in sub-lease to the Bengal Coal Company. English law is called an estoppel. I think The Bengal Coal Company were made it is very doubtful whether any decision defendants in the suit, and put forward is an estoppel, except such as would come their claims to possession of the village within the provisions of Section 2, Act under their lease from the mokurraridar VIII of 1859. If any subsequent suit defendants. The Deputy Commissioner had been brought for the alleged arrears of Hazaribagh was of opinion that neither of rent for the years 1264, 1265, and the temporary leases set up by the plain- 1266, the decision in the former suit tiff, nor the mokurrari potta set up by the would prevent its being heard, supposing defendants, were valid or genuine, but that the cause of action was the same. that it was proved to his satisfaction that But if a suit had been preferred for the the defendants had held this village, rent of the year 1267, I am not satisKuldia, at a fixed rent, for more than fied even upon the English law books 12 years anterior to the institution of the that the decision for the former years suit, and that such holding was adverse would be what in Eoglish law is called

1870 Baboo Mahendralul Shome contended that section 2, Act VIII BABOO MOHAN of 1859, barred the present suit. In the former suit against LAL BHAYA

GYAL LACHMAN

an estoppel. It would be evidence and pute finally and conclusively would, in LAL. most important evidence, and it might be such a case, be given to the Moonsiff by

a question whether it was not to be con- the act of the defendant. The Moonsiff sidered by the Court conclusive evidence; had, as every inferior Court has, jurisdicbut I am not prepared to say that no evi- tion to try every matter which is necesence could be offered to prove any fact sary for the adjudication of the point which had been found against on the which is in contest before him, whether former occasion. But the case before us it involves interests of the largest value is much stronger than that. It has always or the smallest ; but such decision is been held that, for a decision to be con- only final as regards the fact which he clusive evidence, it must not be passed is adjudicating upon. It is not a final by an inferior Court. If the judgment adjudication for the decision of other of an inferior Court is offered to prove facts which are not in contest before him. the same facts, but for a different pur- A decision by Morgan and Shumboonath pose, it is admissible in evidence, and the

Pundit, JJ., Ooma Churn Dutt v. Beckproceedings can be looked at ; but the with (6), has been cited in which the decision is not conclusive evidence. This law is laid down in different terms, but rule is very distinctly laid down in Star- the question did not on that occasion kie's Law of Evidence. It was also laid

directly arise. Another decision, Chowdown by Peacock, C. J., in the case of dhari Nilkanth Prasad Singhv. Dignarayan Mussamut Edun v. Mussamut Bechun (a). Singh (c), has been cited, but it seems there In the ruling there laid down, I entirely to have been taken for granted that the concur. “It is quite clear that, in order Court which previously decided the ques“ to make the decision of one Court final tion at issue was a Court of concurrent “and conclusive in another Court, it must jurisdiction. At least that point was not “ be a decision of a Court which would debated or taken into consideration, and “have had jurisdiction over the matter in finally the appeal was decided on another

the subsequent suit in which the first deci- point altogether. A third case, Chunder
“sion is given in evidence as conclusive.Shekhur Deb Roy v. Doorgendro Deb (d),
To rule otherwise would bring about the has also been cited, but it is not certain
result that any plaintiff could oust the that the Judges there intended to lay
superior Courts of their jurisdiction by down a different ruling. That was a
bringing a tentative case in the inferior question as to the validity of a mokurrari
Courts for some small matter, collateral sanad, and they laid down that the vali-
to the real important fact which is in dity of the sanad was still open to question
dispute between the parties. Looking to in relation to any other matter than the
the constitution of the Courts in this rent suit, though it must be admitted that
country, it would be making over the it is difficult to reconcile the decision in
most important suits to the decision that case with that dictum. Mr. Justice
of the lowest Courts. It may well be Phear, who was one of the Judges in that
that if the plaintiff's story is true, he case, has recorded his opinion on the point
never heard of the defendant's mokurrari again in the case of Mussamut Edun v.
until he had preferred his suit for rent Mussamut Bechun (a).
in the Moonsiff's Court, and the defen-
dant had put in his answer.

The juris-
KEMP, J.-.

With diction to try this question now in dis- reference to the decisions in the rent suits,

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1870

LAL BHAYA
GYAL
v.

LAL.

Inderkumari, the plaintiff, according to the interpretation of the law then prevalent, was held to be no heir to his maternal BABOO MOHAN uncle. The plaintiff's cause of action is the same now as it was in the

LACHMAN former suit, viz., the death of his maternal uncle and dispossession by Inderkumari. The former suit was against Inderkumari, the present is against her representative. The parties being the same, the suit is not cognizable. Inderkumari's death gave rise to no fresh cause of action. The plaintiff does not claim as heir of Inderkumari. The plaintiff, having once been declared to have no right to the property in dispute, cannot question the adoption by Inderkumari.

Baboo Chandra Madhab Ghose, on the same side, contended that the plaintiff sued in this case to recover the estate of Sitaram upon the title of inheritance. The inheritance opened out to him (if it did so at all) on the death of Sitaram, and his cause of action to recover the estate accrued then and there, and he accordingly brought the previous suit.

The decision of the Principal Sudder Ameen in that case, as modified by the High Court, held plaintiff to have no right as heir to Sitaram. The question then arises whether plaintiff can maintain a fresh suit upon the same title of inheritance, which formed the basis of the previous suit. There was a final decision as against the plaintiff in the suit that was brought upon the true and only cause of action, and the death of Inderkumari does not give plaintiff any fresh cause of action whatever. True

I am of opinion that they cannot be used the rent suits and in this suit are not the as estoppels. It may be difficult to recon- same. Issues may have been laid down in cile the different decisions of this Court the rent suits leading up to the main queswhich were cited by counsel on both sides tion for adjudication in those suits, viz., during the argument; but looking to the whether any rent was due or not, and in established principles which govern rent order to arrive at a conclusion on that quescases, I have no doubt whatever that we are tion, it may have been necessary inadvernot precluded from going into all the ques- tently to go into the question of title. The tions of title raised in the present suit, remarks of Peacock, C. J., in Mussamut notwithstanding the decisions in the rent Edun v. Mussamut Bechun (a), which suits. The parties in the rent suits and in have been quoted by Mr. Justice E. this suit are, it is true, the same, but the Jackson, are also clearly in point. subject-matter and the cause of action in

(a) 8 W. R., 175.

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