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TMI Blog1891 (12) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. I shall now briefly state the other material allegations of the parties as ascertained from the pleadings or at the trial. Those of the plaintiff are as follows:-The second defendant possessed in reality no interest under the lease; his name was introduced into the transaction merely to secure a benefit to the first defendant, whose daughter by a concubine is married to the second defendant. A fourth share of the profits that the plaintiff might make from the village during the term of the lease was to go to the first defendant, the plaintiff taking the remaining three-quarters. This was the original understanding; but shortly after the lease was granted, the first defendant wanted half the profits instead of a fourth; the plaintiff refused to comply with that demand, and the first defendant, who was bound by law and by the contract to secure quiet possession and enjoyment to the plaintiff, instigated certain inhabitants of the village who had been cultivating the lands before falsely to set up occupancy rights, to disturb his possession and obstruct his enjoyment. In faslis 1295 and 1296 the obstruction became so complete that the plaintiff and his tenants were unable to culti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ree in Original Suit No. 59 of 1887 on the file of the Subordinate Court of Kumbakonam? Third--Was the first defendant justified in cancelling the lease? Fourth.--To what damages, if any, is plaintiff entitled? Fifth.--Is the defendant personally liable for such damages, if any? 8. Mr. Brown, in opening the first defendant's case, commented on the inconsistent manner in which the plaintiff's case was presented. From paragraphs 4 and 8 and the prayer of the plaint it clearly appears that the plaintiff intended to rely on a covenant for quiet enjoyment, and that he treated the suit as one for breach of contract. Later on, however, the plaintiff informed the Court that he sued the first defendant not as executor, but in his personal capacity. Mr. Brown argues that this is in effect an admission that the suit is not one for breach of contract. Though the first defendant traversed the allegation about the covenant for quiet enjoyment, no express issue was raised by the plaintiff on the point. But on the other hand, if the plaintiff was understood to have abandoned the case on the footing of a breach of contract, that ought to have been made clearer upon the record an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the view I take of this legal objection, I must decide the first issue against the first defendant, even if I should come upon the evidence in the case to the conclusion that the second defendant is a co-lessee; I therefore refrain from discussing the evidence upon this feature of the transaction, which reveals its questionable character. That it is a questionable transaction is clear whether the evidence for the plaintiff or the evidence for the defendant be accepted. The plaintiff's case is that at the time of the lease, which, I consider, was granted on favourable terms, the lessee agreed to give the lessor, a trustee, one-fourth of the profits during the whole term as an inducement to his granting the lease. On the other hand the second defendant as the first defendant's witness admits that the plaintiff offered him a share in the profits to make the first defendant give the lease, and that the latter did, in consequence, grant the lease with the full knowledge that the profits were to go to the second defendant, his own son-in-law then living with him as a member of his family, and with the knowledge that second defendant was to take no trouble whatever in connectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishnasami, Second Appeal No. 1200 of 1887 unreported Wilkinson, J., came to a different conclusion, whilst Kernan, J., adopted the view which is to be explained on the principle referred to by WEST, J., in the latter part of the second paragraph on page 80. Bholabhai v. Adesang I.L.R. 9 Bom. 75 was not brought to the notice of Wilkinson, J., and the latter decision of the Chief Justice and Telang, J., was subsequent. 13. The Bombay rulings seem to me necessarily to involve the proposition, which, for the purpose of the point I am now considering, may be shortly stated thus. In appealable cases, a decision to be res judicata must have been given in a previous suit which the parties, according to the ordinary procedure, were entitled to take, as to fact and law, ultimately to the same (or corresponding) appellate tribunal to which the subsequent litigation, wherein the decision is relied on as conclusive, could be carried. If the rule thus deduced is correct, the first defendant's contention as to res judicata is unsustainable, as the suit in the Subordinate Court was for less than ₹ 5,000 and only an appeal upon questions of law lay to the High Court; whereas the presen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry for an appeal. The passage from Savigny, cited in support of this view, is quoted by WEST, J., in Anusuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 466 and is as follows:- Everything that should have the authority of res judicata is and ought to be subject to appeal. This being so, it follows that that element of res judicata on which the whole of the present discussion turns, viz., concurrence of jurisdiction, must exist not only as to the Original Court, but also as to the appellate tribunals and their powers in the respective suits. That the necessity for this complete concurrence of jurisdiction in appeal also was distinctly persent to the Privy Council when it laid down the law in terms very similar to those of Section 13 of the Civil Procedure Code is clear from the observation of their Lordships. It is true that there is an appeal from the Munsif's decision, but that upon the facts would lie to the District Court, and not to the High Court, Misir Raghobardial v. Rajah Sheo Baksh Singh L.R. 9 IndAp 197 Mr. Brown cites Krishna Behari Roy v. Brojeswari Chowdranee L.R. 2 IndAp 283 but the point now raised was not taken there, whereas, in the later case of Misir Raghobard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 17. Mr. Brown next argued that the acts on the part of the people in the village, relied on by the plaintiff, did not in law amount to an eviction. It cannot be denied and, I believe, it is not denied, that in the fasli in question the plaintiff and his tenants were, in consequence of the objection of the former tenants, utterly unable to cultivate any of the wet lands, which were the most valuable part of the property demised, and a great portion of the dry lands. The Magistrate, by an order (Exhibit H) under the Criminal Procedure Code, upheld the possession of those that set up occupancy rights. Upon this state of the facts, I would have no hesitation in holding that there was an eviction sufficient to create, according to Morrison v. Chadwick 7 C.B. 266 already referred to, a suspension of the rent, etc., for the non-payment of which the first defendant proceeded to determine the lease, should I find that the first defendant instigated the people that turned out the plaintiff to do so. 18. The question I have now to consider is that of the first defendant's responsibility for the acts of the people of the village. The evidence, on behalf of the plaintiff on the point, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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