- (1.) THIS is a defendants' second appeal arising out of a suit for possession, damages and mesne profits in respect of a house. The question of law which has been sharply debated before me in the present case is of some importance and may be formulated as under:- "What is the effect of the decision in a rent suit about title on a later title suit between the parties?"
(2.) THE material facts of the case are that the plaintiffs claimed themselves to be the owners of the house in dispute and alleged that they had formerly taken the land on lease and at that time a Kachcha house stood thereon, that they built the disputed house in the year 1956, that two kothris in suit were let out at Rs. 5/- per month to the defendants Nos. 1 and 2, that they did not pay rent to the plaintiffs des pite notice of demand and also denied the plaintiff's title. The plaintiffs then brought a suit against the defendant No. 1 for eject ment and arrears of rent. It was held in that suit that the plaintiffs had no title in-the property in suit and that the defendants Nos. 1 to 3 were the owners of the house in question and the site thereof belonged to them as lessees of the plaintiffs. The plain tiffs lease stood forfeited, but the plain tiffs' suit was dismissed on 22-8-1960. That suit was numbered as 845 of 1959. The plaintiffs then filed the present suit for declaration of title and possession over the two kothris. The mesne profits and dama ges were also claimed at the rate of Rupees 10/- per month The defence to the suit was that about 50 years ago the plaintiffs' father Ninua and one Senda took some land as permanent lessees on a yearly rental of Rs. 15/-, that the land was later divided between the ancestors of the present in habitants who were to pay the propor tionate rent of the land and that the defen dants and the other residents of the loca lity had been coming down in possession accordingly. It was pleaded that previous ly one Chunni Lal, father of Dal Chand, took the site of the house in suit on rent at a monthly rental of Rs. 8/2/- about 20 years ago, that his interest terminated and the said house used by him fell down, that at that time Ninua and the descendants of Senda, original lessees, leased out the site of the disputed house to the father of the defendants Nos. 1 and 2 and husband of the defendant No. 3 on an yearly rent of annas twelve. The house in suit was said to have been constructed by the father of the defendants Nos. 1 and 2 as permanent lessees and the defendants claimed to be in possession accordingly. The plaintiffs' right, title or interest in the house in suit were denied. It was also pleaded that the suit was barred by res judicata.
(3.) THE trial Court held that the suit was barred by res judicata, that the plaintiffs were not the owners of the house in question and that the defendants were not the permanent lessees of the site. With these findings the suit was dismissed. The plaintiffs went up in appeal against the decree of the trial Court which was allow ed and the suit was decreed. The findings recorded by the lower appellate Court were that the plaintiffs had constructed the house in suit and it belonged to them and further that the present suit was not bar red by res judicata. Aggrieved by the decree of the lower appellate Court the defendants have come in second appeal to this Court.;