Decided on December 22,1988

KANNEILAL Respondents


- (1.) These two appeals which arise out of judgments passed in appeals heard analogously were also heard analogously and are being disposed of by a common judgment.
(2.) There stood a house over half a decimal of land recorded in Sikimi Khata. The owner of the land was Sri Radha Raman Jew and its marfatdar was Radha Prasanna Das. Ananta Mohan Das and others were Sikimi tenants. In the year 1961, one Srinibas Nande, predecessor-in-interest of respondents 2 to 9, purchased the house from the sons of one Krushna Chandra Das, one of the Sikimi tenants, under Ext. 7 dated 6-10-61. Rent was accepted from Srinibas and he was recognised as a tenant by the landlord. Kanneilal, respondent 1, in the appeals was inducted as a lessee by Srinibas. He ran a shop there under the trade name Messrs Durga Store. It is alleged that Kanneilal inducted Sankarlal as a partner and both of them ran the business in the premises in question. In the year 1970, Srinibas Nanda filed SCC 16 of 1971 in the Court of the Subordinate Judge, Balasore against Kanneilal and Sankarlal for realisation of Rs. 420/- towards arrears of house rent. The suit was decreed against Kanheilal. O.S. No. 14 of 1974 was filed by Srinibas Nanda against Kanheilal for realisation of house rent for a subsequent period. Kanheilal took the plea that since 1973 the partnership had been dissolved and Sankarlal (appellant) alone was in possession of the house. Kanheilal filed O. S. No. 5 of 1972 (renumbered as O. S. No. 80 of 1976) for a declaration that the partnership between him and Sankarlal had come to an end and the appellant was the sole proprietor of the business run in the premises. Therefore, he was liable for rent and the amount of Rs. 420/- which he paid pursuant to the decree passed against him in S.C.C. 16 of 1971 was to be reimbursed by the appellant. He also made a prayer for realisation of Rs. 2030/- as rent from the appellant.
(3.) The plea of the appellant in both the cases was that he entered into an agreement with Sri Radha Prasanna Das on 1-12-67 and later on he purchased the house and acquired valid title. He further pleaded that in view of the decision in S.C.C. 16 of 1971 holding Kanheilal alone liable, the claim of Kanheilal for realisation of Rs. 420/- was hit by the principle of res judicata. O.S. No. 5 of 1973 filed by Kanheilal was dismissed and he preferred Sub-Judge Appeal No. 13 of 1974. O.S. No.14 of 1974 filed by the Nandas was also dismissed and Sub-Judge Appeal No. 4 of 1975 was filed. By judgment dt. 23-12-75, the learned District Judge remanded the appeals granting opportunity to the parties to amend the pleadings. It was held that the liability of Sankarlal to reimburse Kanheilal in the sum of Rs. 420/- could not be reagitated after the remand. It is worthwhile to notice that in O.S. No. 14 of 1974 filed by the Nandas, the appellant Sankarlal had not been impleaded, Pursuant to the direction in the order of remand, the Nandas impleaded the appellant as defendant 2. That was by order dt. 10-5-76. Kanheilal amended the relief in O.S. No. 6 of 1973 (renumbered as O.S. No. 80/76) and sought a declaration that the Nandas were not entitled to recover any money. The appellant took the plea that by virtue of his purchase by registered sale deed on 21-10-70, he was not liable to pay rent either to Kanheilal or to the Nandas. His plea on the basis of title was negatived. The Nandas were held to be Sikimi tenants. The appellant was held liable to reimburse Kanheilal in the sum of Rs. 420/- and decree for Rs. 4900/- towards damages for use and occupation of the house was passed against him, The appellant carried appeals. The appeals having been dismissed, the appellant preferred these two second appeals.;

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