Surendra Nath Karan Deo Vs. Kumar Kamakhya NaraIn Singh - Court Judgment |
| SooperKanoon Citation | sooperkanoon.com/346440 |
| Subject | Civil |
| Court | Mumbai |
| Decided On | Nov-29-1929 |
| Judge | Viscount Sumner,; Thankerton,; John Wallis and ;Lancelot Sanderson, JJ. |
| Reported in | (1930)32BOMLR515 |
| Appellant | Surendra Nath Karan Deo |
| Respondent | Kumar Kamakhya NaraIn Singh |
| Disposition | Appeal allowed |
Excerpt:
.....1908), section 11 - ' finally decided '-res judicata- suit for rent-question of defendant's tenure, not dealt with in final judgment of ultimate court of appeal.;in a suit for arrears of rent, the court of first appeal referred in its judgment to the suit land as the defendant's jagir, but it also stated that the only point at issue was as to the rate of rent, and on second appeal the high court dealt with the case in the game way :-;that, in these circumstances, even assuming that the question of the defendant's tenure arose in the case, as the final judgment of the high court in second appeal did not deal in any way with the question whether the defendant's tenure was a jagir, there was no final decision within the meaning of section 11, civil procedure code, 1908, of the issue..........of the issue whether the defendant's estate was a jagir, if indeed it can be said to have arisen in the case. [the rest of the judgment is not material.]2. in the result their lordships have come to the conclusion from the reasons already stated that the appeal should be allowed and the decree of the subordinate judge dismissing the suit restored with costs throughout, and they will humbly advise his majesty accordingly.
Judgment:John Wallis, J.
1. [After dealing with points not material to this report the judgment proceeded: ] As regards the question of res judicata the final judgment of the High Court does not deal in any way with the question whether the defendant's tenure was a jagir nor does the judgment of the Deputy Commissioner at the trial. On appeal the Judicial Commissioner no doubt referred at the beginning of his judgment to the suit land as the defendant's jagir, but he also stated that the only point at issue was as to the rate of rent, and the High Court dealt with the ease in the same way. In these circumstances it appears to their Lordships that there was no final decision within the meaning of Section 11 of the Code of Civil Procedure of the issue whether the defendant's estate was a jagir, if indeed it can be said to have arisen in the case. [The rest of the judgment is not material.]
2. In the result their Lordships have come to the conclusion from the reasons already stated that the appeal should be allowed and the decree of the Subordinate Judge dismissing the suit restored with costs throughout, and they will humbly advise His Majesty accordingly.