- (1.) YATINDRA Singh, J. This is a tenant's writ petition against the order dated 25. 11. 1981 passed by Respondent No. 1 allowing the revision and decreeing the suit of the landlord.
(2.) RESPONDENT Nos. 2 and 3 are the plaintiffs in suit. They filed a suit for the ejectment of Defendant Nos. 1 and 2, inter alia, on the ground that initially one Vish nu Vallabh, father of Plaintiff No. 2 was owner and landlord of the property in dis pute and his wife Smt. Sushila Bai had executed a saletdeed in favour of Plaintiff No. 1 and as sifch the Plaintiff No. 1 be came owner and the landlord of the premises in dispute. It was, however, alleged that initially Rudra Dutt was the tenant of the premises. After his death Maya Devi, Defendant No. 1, became the tenant. She has illegally let out the premises to one Moti Ram. Maya Devi did not contest the suit. Moti Ram filed a written statement alleging that Vishnu Vallabh was not the owner of the premises in dispute. He could not execute the sale-deed in favour of Plaintiff No. 2. He further alleged that he was owner of the premises in dispute. The trial Court after considering the evidence on record came to the con clusion that plaintiff in not able to prove the relationship of the landlord and tenant and as such the suit was dismissed. The trial Court did not consider the judgment in J. S. C. C. Suit No. 478 of 1964, Satish Chandra v. Rudra Dutt. Aggrieved by the order of the trial Court, the plaintiff filed a revision. It was allowed holding that Maya Devi was tenant in premises in dispute. This finding was given after looking into the judgment in Original Suit No. 478 of 1964, Satish Chandra v. Rudra Dutt, and the judgment of Appeal No. 50 of 1969 Satish Chandra v. Rudra Dutt. Abhishek Kumar, learned counsel holding brief of Madhur Prakash, Advo cate argued that the revisional Court has wrongly held that judgment in Suit No. 478 of 1964 and Civil Appeal No. 50 of 1969 is res judicata against the defendant. The suit of the plaintiff was dismissed and so was the appeal. The decision given on an issue against the defendant, in a suit which was dismissed, could not be res judicata against the defendant. It is the settled law. This is supported by the catena of decisions and it is well summarised in Mullah or. the Code of Civil Procedure, 15th edition, page 172 asunder: "as regards the suit the following emerge: Rule 1. The plaintiff's suit is wholly dis missed; no issue decided against the defendant, can operate as res judicata against him in a subsequent suit, for the defendant cannot ap peal from a finding on any such issue, the decree being wholly in his favour. "
(3.) IF the findings given in suit No. 478 of 1964and Civil Appeal No. 50of 1969are not res judicata and are excluded from consideration, then the trial Court had given its finding considering the evidence on record that there was no relationship of landlord and tenant. These were findings of fact and could not be interfered by the revisional Court on the ground that the decision in his suit No. 478 of 1964 and Civil Appeal No. 50 of 1969 is resjudicata. The Judgment of revisional Court dated 26. 11. 1981 is illegal. It is hereby quashed and the judgment of the trial Court dated 31,3. 1980 is restored. With the above observation the writ petition is allowed. Petition allowed. .;