Ganendra Narayan Ray, J. - (1.) The judgment of the Court was as follows:- This appeal arise out of the judgment and decree passed by the learned Additional District Judge, 4th Court, Alipore, in Title Appeal No. 2 of 1975 affirming the judgment and decree passed by the learned Munsif, 3rd Court of Sealdah, in Title Suit No, 4 of 1973. The defendant No. 1, is the appellant and the said Title Suit No. 4 of 1973 was instituted by the plaintiff respondents Nos. 1 and 2, Smt. Puspa Rani Ghose and her husband, Jatindra Nath Ghose against tho defendant No. 1, Sukunir Bogs end also impleading hie son, viz. Biswaranjan Bose for eviction of the defendant No. 1 from the suit premises and for recovery of possession of a shop room comprising the tenancy in question.
(2.) The case of the plaintiffs was, inter alia, that the defendant No.1 was inducted as a tenant in respect of the said shop room but his tenancy was determined by a valid notice to quit but as the name of the son of the defendant No. 1 also appeared on a signboard of the said shop room he was also impleaded as a proforma defendant. It may be stated in this connection that prior to the institution of this suit, the plaintiff's also instituted another suit for eviction against tho said defendant No. 1 which was numbered as Title Suit No. 225 of 1970. In the said suit, the present plaintiffs also claimed that the defendant, Sukumar Bose was a monthly tenant at a rental of Rs.30/- payable according to the English Calendar and that the said tenancy was determined by a notice to quit. The defendant, Sukumar Bose also contested the said suit but the suit was decreed by the learned Munsif in favour of the plaintiffs and the defendant then preferred an appeal against the said judgment and decree of the learned Munsif and the appeal was registered as Title Appeal No. 216 of 1972, it was held by the Appeal Court that both the plaintiffs were the Landlord of the defendant in respect of the disputed room but the appeal was allowed by the Appeal Court became it was held by the Appeal Court that the notice determining the tenancy on the bails of which the suit was instituted was invalid. It may also be noted in the connection that in the plaint of the said suit, there was an averment to the effect that both the plaintiff were the Landlord but such averment was not disputed specifically by the said Sukumar Bose in his written statement made of the earlier suit and accordingly on the doctrine of non-traverse of pleadings, It was held that the defendant hid admitted the case of the plaintiffs in the said suit that both the plaintiffs were his landlords.
(3.) However, after the unsuccessful attempt, in the said previous suit, both the said landlords instituted the instant Title Suit No. 4 of 1974. The defendant No. 1 in his written statement made in the instant suit contended that he was inducted as a tenant by the plaintiff No. 1, Smt. Puspa Rani Ghose but not by her husband Jatindra Nath Ghosh and the defendant No. 1 also contended that the said Jatindra Nath Ghose and the said Biswaranjan Bose, namely, the son of the defendant No. 1 should not have been impleaded as plaintiff No. 2 and defendant No. 2 respectively. The learned Munsif observed that it was held in the earlier suit by the Court of Appeal below that both the plaintiffs were the joint landlords of the said defendant Sukumar Bose but the suit was dismissed by the Court of Appeal below only on the ground that the notice determining the tenancy was invalid. The learned Munsif was of the view that in such circumstances, the finding made by the Court of Appeal below in the earlier suit that both the plaintiffs were the landlords of the defendant would operate as rea-judicata on the similar question raised in the instant suit. It was held by the learned Munsif that although in the earlier suit no specific issue was framed as to whether both the plaintiffs were the landlords of the defendant or not but the matter was considered both by the trial court and the Court of Appeal below and accordingly under Explanation (4) of Section 11 of the Code of Civil Procedure, such finding made in the previous suit that both the plaintiffs were the landlords would operate as res-judicata. In that view of the matter, the learned Munsif decreed the said suit and the defendant No. 1, Sukumar Bose preferred an appeal against the judgment and decreed passed by the learned Munsif, being Title Appeal No. 2 of 1975 to the 4th Court of the learned Additional District Judge of Alipore. The learned Additional District Judge came to the finding that although the said earlier suit was ultimately dismissed by the Court of Appeal below on the finding that the notice terminating the tenancy was invalid but, when specifically it was held in the said suit that both the plaintiffs were the landlords of the defendant, the defendant No. 1 in the said earlier suit ought to have preferred an appeal before this Court against the said finding made by tin Court of Appeal below. The learnad Additional District Judge was of the view that normally when a party had succeeded in a suit or in this appeal against the finding made on a particular issue or fact but in appropriate cases, when such finding of fact was likely to affect a party he required to prefer an appeal and if ha had not preferred such an appeal then he would be precluded from contending any further against the finding of fact made in the earlier proceeding. The Court of Appeal below also came to the finding that simply because the rent receipts were panted by the plaintiff No. 1, Smt. Puspa Rani Ghosh such grant of teat receipts by itself could not decide the issue as to whether both the plaintiffs were the landlords or not. If the defendant No. 1 had been inducted as a tenant both by the plaintiffs then the grant of rent receipts by one of the landlords could not affect the induction of tenancy by both the landlords. The Court of Appeal below was however of the view that for the purpose of deciding at to whether the defendant No. 1 had been inducted by both the landlords or not, the finding made in the.said earlier proceeding that both the plaintiffs were the landlords must be held to be a conclusive finding. Accordingly, the Court of Appeal below dismissed the appeal and affirmed the judgment and decree passed by the learnede Munsif. the defendant No. 1 thereafter preferred the instant appeal before this Court.;