PATNA HIGH COURT

                                               Dalip Narain Singh

                                                         Vs

                                           Deokinadan Prasad Singh

                                                     (Wort, J.)

                                                   05.05.1939

                                                  JUDGMENT

Wort, J.

1. This seems to be a reasonably clear case. The plaintiff-respondent in the action claimed a
declaration against two persons (one of them being defendant second party, the appellant before
us) of his title to plot No. 1034 under Khata No. 422. The suit has been decreed against both
defendants. The question which arises is whether as against the plaintiff and in favour of
defendant 1 the matter is res judicata. The facts shortly are these. The plaintiff brought a previous
suit against the defendant first party claiming rent, and it appears that the issues framed in that
suit were first, what was the jama, and secondly, whether the plea of payment had been
established. I am using my own words and not the actual words of the issues as framed by the
learned Judge. That suit was dis. missed, and it is contended that it was dismissed on the ground
that the plaintiff had failed to establish his title to the land which I have mentioned. It seems to
me that the solution of the problem is arrived at on one very simple ground.

2. The contention of Mr. Mahabir Prasad is that as the question of title was decided in the
previous suit, it was concluded at least in favour of defendant first party who was stated there to
be tenant, and it was faintly contended that the matter was also decided in favour of defendant
second party, a person also claiming title to the property. That is an impossible argument; the
second party defendant was not a party to the previous suit, and therefore it necessarily follows
that the plaintiff could agitate the question of title as against him (the defendant second party).

3. With regard to defendant first party the answer is this: the question which was decided in the
previous suit, as I have indicated by stating the issues settled in that suit, was the question purely
between landlord and tenant. It may very well be that in order to decide whether relationship of
landlord and tenant existed, the matter was disposed of on the footing of status: that is to say, that
the plaintiff attempted to establish that he was the proprietor of the land and that he being the
proprietor of the land, the defendant (being on the land) was necessarily his tenant: I say possibly
it was decided on the footing of status and not ex contract, but all the same it was abundantly
clear that the question of title was only raised incidentally, and, if raised incidentally only, it does
not preclude the plaintiff from agitating the question in an action both against defendant first
party and defendant second party.
4. There is one other point which is raised, and that is, that the plaintiff was not entitled to the
relief by way of injunction. Section 54, Specific Belief Act, provides for cases in which a
perpetual injunction can be granted. After stating in Clauses (a), (b), (c) and (d) the
circumstances under which such an injunction can be granted, Clause (e) provides "where the
injunction is necessary to prevent a multiplicity of judicial proceedings."

5. The present seems to me to be a case coming within 'that clause, and therefore the plaintiff was
entitled to re-strain the defendant second party from collecting rent from defendant first party and
to restrain the defendant first party from paying rent to defendant second party. If he was not
entitled to that, he would be obliged to bring proceedings against one or other of the parties either
for rent as against defendant first party or as against defendant second party if he persisted in
collecting rent from defendant first party as money had and received to the plain, tiff's use.

6. In those circumstances, the decision of the learned Subordinate Judge is right; it must be
affirmed and the appeal dismissed with costs.

Fazl Ali J.

7. I agree.
.