A.N.Varma - (1.) HAVING heard the learned counsel for the appellant, I am not satisfied that any substantial question of law arises in this case. The questions of law sought to be relied by the learned counsel stand concluded by findings of fact and have in any case, been settled by the decisions of this Court and of other courts. They are also hit by the provisions of Section 11 of the Code of Civil Procedure. Both the courts below have recorded a concurrent finding of fact that the appellant was a licensee of the plaintiff respondent having been allowed to occupy the accommodation as an employee of the plaintiff and her predecessors. The license having been duly terminated, a decree for possession has been passed against appellant.
(2.) SRI Sankatha Rai learned counsel for the defendant appellant submitted that on the own plea of the plaintiff both in the present suit as well as the previous suit filed by the defendant against the plaintiff respondent for injunction, the defendant would be deemed to have acquired the status of a tenant and consequently the suit should have been dismissed. It was urged that the plaintiff respondent had asserted in the previous suit that the present defendant appellant was in occupation of the disputed house as her employee. The submission is misconceived. The present defendant appellant had filed the previous suit asserting that he was a tenant. The suit was dismissed on the finding that he was not a tenant but only a licensee. Any plea now sought to be raised by the defendant claiming the status of a tenant would be clearly barred by res judicata, quite apart from the finding recorded by the courts below in the present suit that the defendant has failed to prove that he was a tenant. Further, it was open to the defendant to raise this plea even in the previous suit, but he tlid not take that plea. He cannot hence take that plea in the present suit as such a plea would plainly be barred by constructive res judicata under Section 11 of the Code of Civil Procedure. In short, the previous suit filed by the defendant appellant having been dismissed on the ground that he was not a tenant, he is barred frosn raising any plea to sustain his claim of tenancy rights on any ground whatsoever. Learned counsel next contended that the suit of the plaintiff respondent was covered by clause (g) of sub-section (2) of Section 20 of U. P. Act No. XIII of 1972 as the suit was based on the plea that the defendant was in occupation of the disputed accommodation as an employee of the plaintiff and the employment has ceased in 1976.
(3.) THIS plea was not raised in either of the two courts below. The plea is not one which is purely of law. It at once raises the issue whether the defendant was allowed to occupy the building as part of his contract of employment. Consequently, it cannot be permitted to be raised for the first time in second appeal. Lastly, learned counsel submitted that the suit was liable to be dismissed because the appellant's occupation stood regularised under section 14 of U. P. Act No. XIII of 1972. This plea again was not taken in either of the two courts below. A glance at Section 14 of the U. P. Act No. XIII of 1972 would show that the plea is one which requires investigations of several questions of fact. The ingredients relevant to attract the application of Section 2 (g) have neither been pleaded nor proved. Consequently, the plea cannot be permitted to be raised in the second appeal.;