Decided on January 27,1967



- (1.) THE second defendant in O. S. No. 830 of 1953 of the court of the District Munsiff of Nadapuram was the appellant in A. S No. 257 of 1957 of the court of the Subordinate Judge of Badagara. He is also the appellant in this second appeal.
(2.) THE plaintiff in O. S. No. 830 of 1953 was the first respondent in this second appeal. He is now no more. THE fourth respondent was recorded as his legal representative by the order dated 31 5 1966 on C. M. P. No. 2895 of 1966. O. S. No. 830 of 1953 sought a declaration that the plaintiff was entitled to the tenancy right created under a marupat dated 31 5 1923. It was common ground that the second defendant had obtained the rights of the jenmi. The question that arose for consideration was whether the plaintiff had obtained the tenancy right under the marupat by an assignment dated 14 8 1952 in the name of the first defendant benami for himself as contended by him. The suit was decreed by the trial court, and the appeal by the second defendant did not succeed. The contention of the second defendant before us is that the suit should have been dismissed on the ground that the order in I. A. No. 467 of 1953 in O. S. No. 504 of 1952 of the court of the District Munsiff of Nadapuram against the plaintiff had become conclusive under Order XXI, R.103 of the Code of Civil Procedure, 1908.
(3.) O. S. No. 504 of 1952 was a suit by the second defendant against the first defendant, the benamidar of the plaintiff. The plaintiff tried to get himself impleaded in that suit by R. I. A. No. 566 of 1953. The second defendant opposed that application and it was dismissed by an order dated 15 4 1953. A decree followed and in execution of that decree the second defendant sought possession of the property. The plaintiff obstructed and the second defendant filed I. A. No. 467 of 1953. The order in that I. A. was against the plaintiff. It was made on 24 12 1953.;

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