RAJA RAM Vs. NARAIN DAS

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiffs-respondents against the defendants-appellants for rent of a holding. The plaint sets forth that the plaintiffs are the zemindars of the village and that the Defendant No. 1 is an ex-proprietary tenant and the other defendants his sub-tenants. The defendants resisted the suit on the plea amongst others that the plaintiffs were only co- sharers and could not bring the suit without joining the other co-sharers. The Assistant Collector allowed this plea and dismissed the suit. He held that as a previous suit by the plaintiffs on the same cause of action had been admittedly dismissed, it must be held that it had been decided once for all that the plaintiffs alone could not sue this former decision operating under the rule of res judicata. He also held that if the point was open to proof there was sufficient evidence that there were other co-sharers.

(2.) In first appeal the Additional District Judge found that no previous suit had decided that the plaintiffs were not entitled to sue without joining the other co- sharers and that there was no admission of the plaintiffs of such a previous decision. On the contrary, by referring to the previous litigation, he found that the question of the plaintiffs being able to sue alone had been decided in their favour and that this decision operated as res judicata. Accordingly he allowed the appeal and decreed the suit.

(3.) It may be remarked that on the allegations in the plaint no decree should have been granted against any of the defendants except Defendant No. 1. According to the plaintiffs the Defendant No. 1 was the ex-proprietary tenant and the other defendants his sub-tenants. There being no contract between these other tenants and the plaintiffs, no claim for rent against these sub-tenants would lie; but the lower Court's decree is not appealed against on this ground and, therefore, it is unnecessary to interfere with the decree on this ground.