JUDGMENT S.U. Khan, J.
1. This writ petition was dismissed as abated after rejecting the substitution application through order dated 7.5.2001. The said order was set aside by the Hon'ble Supreme Court in-Civil Appeal No. 6711 of 2001 dated 24.9.2001 and High Court was directed to decide the writ petition on merit.
2. This is tenant's writ petition arising out of suit for eviction filed by landlord-respondent No. 3 Kashi Ram since deceased and survived by legal representatives against tenant-petitioner being SCC suit No. 19 of 1984. [Eviction was sought on the ground of default and denial of title through written statement filed by the tenant petitioner in the earlier suit for eviction which had been filed by the landlord against him being SCC suit No. 77 of 1980.
3. In the earlier suit (SCC suit No. 77 of 1980) petitioner had filed written statement. In the said written statement it had been pleaded that apart from Kashi Ram the plaintiff his brother Sagar Mai was also owner landlord of the property in dispute and suit was bad for non-joinder of necessary party. The earlier suit was dismissed for eviction on the ground that entire arrears of rent had been deposited by the tenant on the first date of hearing. Kashi Ram who was also plaintiff of the earlier suit was permitted to withdraw the amount deposited by the tenant. Against the said judgment and decree Kashi Ram - plaintiff landlord filed SCC revision No. 62 of 1982. The revision was dismissed on 15.9.1983 by A.D.J./Special Judge, Muzaffar Nagar. In respect of question of denial of title it was held in the said judgment by the revisional court that the allegation of the tenant in the written statement that plaintiff alone was not the landlord amounted to denial of title. However, it was further observed that as denial had taken place during the pendency of the suit i.e. in the written statement hence eviction on the ground of denial of title could not be sought for and granted in the same suit. It was further observed that landlord could file a fresh suit for eviction on the basis of the said denial. In view of the said observations, later suit for eviction giving rise to the instant writ petition (SCC suit No. 19 of 1984) was filed. In the second suit giving rise to the instant writ petition tenant pleaded that he had not denied the title of the landlord Kashi Ram. Tenant further pleaded that as landlord refused to accept the rent hence he deposited the same in the earlier concluded suit. Tenant on 28.8.1984 also deposited the entire amount of rent, interest and cost of the suit and claimed the benefit of Section 20(4) of the Act. In respect of denial of title JSCC, held that the assertion of the tenant in the written statement filed in the earlier suit that Kashi Ram alone was not the landlord did not amount to denial of title. In respect of deposit of rent made by the tenant in the earlier concluded suit trial court held that the said deposit was valid and in view of this tenant was not defaulter when notice terminating the tenancy and demanding the rent was given by landlord to him i.e. notice dated 1.2.1984. In respect of benefit of Section 20(4) of the Act the trial court held that the deposit was made by the tenant after the first date of hearing hence he was not entitled to the benefit of Section 20(4) of the Act. The trial court therefore dismissed the suit on the ground that there was no denial of title and notice of termination of tenancy and demand of rent was invalide as at the time of notice tenant was not defaulter. The trial court therefore dismissed the suit and permitted the landlord to withdraw the amount deposited by the tenant. The suit was decided by trial court on 17.5.1985. Against judgment and decree dated 17.5.1985 Kashi Ram landlord filed SCC revision No. 57 of 1985. Vith ADJ, Muzaffar Nagar through judgment and order dated 7.10.1986 allowed the revision, set aside the judgment and decree passed by the trial court and decreed the suit for ejectment also hence this writ petition by the tenant.
4. The revisional court held that deposit of rent by the tenant in the concluded suit was not valid hence at the time of notice he was defaulter and notice was therefore quite valid (it is admitted in para-3 of the plaint that rent till 31.8.1983 had been paid by the tenant). In respect of benefit of Section 20(4) of the Act revisional court did not say anything as trial court itself had held that the first deposit was beyond the first date of hearing. In respect of invalidity of deposit of rent in the concluded suit and validity of notice of demand I fully agree with the findings of the revisional court. Tenant had no right to deposit rent in the concluded suit hence notice of demand was perfectly valid.
5. As far as deposit in the suit giving rise to the instant writ petition is concerned I find that it was made on or before first date of hearing. Deposit was made on 28.8.1984 and written statement was filed on or before 28.8.1984 after permission/time being granted in that regard by the trial court. I have held in K.K. Gupta v. A.D.J. 2004 (2) A.R.C. 659 after discussing five authorities of the Supreme Court that in case written statement is filed after permission of the court then no date prior to the date of filing of written statement can be taken to be date of first hearing. I accordingly hold that tenant had deposited the entire amount as required by Section 20(4) of the Act on or before, the first date of hearing hence he was not liable to ejectment on the ground of default.
6. As far as question of denial is concerned, it has been held by the Supreme Court in C. Chandramohan v. Sengottaiyan A.I.R. 2000 S.C. 568 that mere assertion of tenant that landlord is co-owner because of lack of knowledge of deed does not amount to denial of his title. If a tenant asserts that plaintiff is co-landlord then it means that he is admitting him to be landlord because a co-landlord is also landlord. I therefore hold that the allegation of the defendant in his written statement filed in the previous suit (SCC suit No. 77 of 1980) does not amount to denial of title.
7. Now the only question which remains to the decided is as to whether finding of the revisional court in the Judgment of the revision arising out of the previous suit to the effect that tenant had denied the title of the landlord Kashi Ram amounts to res-judicata or not. The said revision had been dismissed by the revisional court hence there was no occasion for, the tenant to file appeal or writ petition against the said judgment. It has been held by the Supreme Court in Ganga Bai v. Vijay Kumar that no appeal lies against a mere finding. In the earlier judgment revisional court had held that as there was no pleading in respect of denial of title and as denial of title had taken place during pendency of suit hence no relief on the basis of said ground could be granted in that very suit. After recording the finding that plea of denial of title could not be considered it was not all necessary for the revisional court to express the opinion that what the tenant stated in the written statement amounted to denial of title. By maximum it can be treated to be an opinion of the court. The Supreme Court in R. Prasad v. Shri Krishna has held that the expression of the opinion, of court does not operate as resjudicata if that question was not in issue before the court.
8. The Supreme Court in Mahesh Chandra v. Shiv Charan Das has held that an observation which was not only off the mark but unnecessary could not operate as resjudicata. It was further held therein that one of the tests to ascertain if a finding operates as resjudicata is if the party aggrieved could challenge it. It was held that since the appeal was dismissed and appellate decree was not against defendant No. 2 and 3 they could not challenge it by way of further appeal.
9. On this point a comparatively recent authority of the Supreme Court reported in Pawan Kumar Gupta v. R. Nagdeo also requires consideration. The facts of the said case were that in the suit for eviction against the tenant, the tenant asserted that plaintiff was not his landlord. However the tenant in the alternative deposited the entire arrears of rent on the first date of hearing. The court held that the plaintiff was the owner. However suit for eviction was dismissed on the ground that entire arrears of rent had been deposited on the first date of hearing. In a subsequent suit by the same plaintiff defendant sought to assert again that plaintiff was not the owner-landlord. In respect of applicability of doctrine of resjudicata it was asserted in the second suit by the tenant that as earlier suit had been dismissed hence he could not file appeal against the said judgment and therefore any finding recorded against the tenant in the earlier judgment would not operate as resjudicata. The Supreme Court did not accept the said plea of the tenant. The Supreme Court held that even though word dismissed was used by the trial court while deciding the earlier suit however the plaintiff had been permitted to withdraw the amount deposited by the tenant hence in fact suit was decreed for recovery of arrears of rent and tenant could very well file appeal against the said judgment and decree. In view of this it was held that a finding in the earlier suit that plaintiff was owner landlord operated as resjudicata. Paragraph 19 of the said authority is quoted below:
"Thus the second legal position is this: If dismissal of the prior suit was on a ground affecting the maintainability of the suit any finding in the judgment adverse to the defendant would not operate as res judicata in a subsequent suit. But if dismissal of the suit was on account of extinguishments of the cause of action or any other similar cause a decision made in the suit on a vital issue involved therein would operate as res judicata in a subsequent suit between the same parties. It is for the defendant in such a suit to choose whether the judgment should be appealed against or not. If he does not choose to file the appeal he cannot thereby avert the bar of res judicata in the subsequent suit."
10. In the instant case also in the earlier judgment of the revisional court plea of denial of title was not permitted to be raised and refused to be adjudicated upon on the ground that it had come into existence during pendency of the suit and not prior to filing of the suit. In this manner it affected the maintainability of the said plea i.e. that of denial of title hence the observation of the revisional court adverse to. the tenant to the effect that his allegation in the written statement amounted to denial of title would not operate as resuscitate. In the earlier suit it was held that Kashi Ram, alone was the landlord and the plea of the tenant that suit was bad for non joinder of Sagarmal the other alleged co-landlord was decided against the tenant. These findings operate as resjudicata and in the subsequent suit tenant could not be permitted to say that Kashi Ram alone was not the landlord. However the observation of the revisional court in the earlier judgment that allegation of the tenant amounted to denial of title does not operate as resjudicata.
11. Accordingly, judgment and order passed by the revisional court being erroneous in law is set aside and judgment and decree passed by the trial court is approved even though on different grounds. Writ petition is allowed.