JUDGMENT : In this second appeal by defendant nos. 1 and 2 arise important and interesting questions of res judicata. While according to learned counsel for the appellants, the suit of the plaintiff-respondents itself was barred by res judicata on account of the decision in Title Suit No. 85 of 1956 of the First Court of the Munsif at Chapra, according to learned counsel for the plaintiff-respondents, this appeal itself is barred by res judicata as no appeals have been cited against the decrees in Title Suit No. 137 of 1959 and Money Suit No. 396 of 1959, which were tried analogous with the suit by the trial court and appeals arising wherefrom were heard together with the appeal from which the present second appeal arises by the lower appellate court. 2. In ORDER :to appreciate the respective contentions of learned counsel for the parties, relevant facts may briefly be stated. Admittedly, there was a room measuring 21 ft. x 21 ft. in mohalla Sahebganj of the town of Chapra, which belonged to Khakhan Sah and others. According to the plaintiffs, the entire room was let out to two persons, Abdul Ghafoor Ansari and Farzand Ali. According to the appellants, only the western half of the room, that is, 21 ft. x 10½ ft., was let out to those two persons. There was a division between Ghafoor and Farzand in year 1947, Ghafoor getting the western half of the premise let out to both of them. Thereafter, Ghafoor used to pay Rs. 37/- as monthly rent for the portion of the room in his occupation. Ghafoor died in 1949. His brother, Nurul Huda Ansari (defendant no. 41), started looking after the business as the three sons of Ghafoor (plaintiffs 2 to 4) were minors at that time and his widow (plaintiff no. 1) also, being a purdanashin woman, could not manage the business. There was also a partition among the landlords and the area which was under the tenancy of Ghafoor was allotted to Khakhan. In the year 1951, however, Nurul Huda agreed to pay a rent of Rs. 49/- per month for that part of the premises which had been allotted to Ghafoor. According to the appellants, it was not really a case of enhancement, but creation of a new tenancy in favour of defendant no. 4 at the aforesaid rental of Rs. 49/- per month. 49/- per month for that part of the premises which had been allotted to Ghafoor. According to the appellants, it was not really a case of enhancement, but creation of a new tenancy in favour of defendant no. 4 at the aforesaid rental of Rs. 49/- per month. On the 8th March, 1952, the plaintiffs admitted defendant no. 4 as a partner to their business which was named and styled as "Abu Rafat Ansari and Company". The business was carried on in the premises in dispute. On the 23rd December, 1953, Khakhan executed two zarpeshgi deeds, one in favour of appellant no. 1 and the other in favour of appellant no. 2 each being in respect of an area of 21 ft. x 5½ ft. of the said room. Appellant no. 1 was given the westernmost portion and appellant no.2 towards the east in the western half of the entire room. In the year 1955, appellant no. 1 instituted suit for rent. It was first registered as a small cause court suit No. 365 of 1955. But, as it involved question of title, it was subsequently registered as Title Suit No. 85 of 1956. The case of appellant no. 1 in that suit was that defendant no. 4 was tenant in respect of the western 21 ft. x 5½ ft. of the room on a rental of Rs, 49/- per month and was liable to pay rent at that rate for the period in suit. Defendant no. 4, in his written statement, did not challenge that he was tenant under appellant no. 1 or that the rate of rent as claimed was high, but he contested the suit on the ground that he was a tenant in respect of 21 ft. x 10½ ft. and that the suit could not proceed in absence of appellant no. 2 and Khakhan Shah, the mortgagor, who were necessary parties to the suit. The suit was decreed by the trial court and the decree was affirmed on appeal. Both the Courts held that defendant no. 4 was a tenant in respect of 21 ft. x 5½ ft. only, and that appellant no. 2 and the mortgagor, Khakhan Shah, were not necessary parties to the suit. The JUDGMENT : of the appellate court was delivered on the 12th January, 1959. Both the Courts held that defendant no. 4 was a tenant in respect of 21 ft. x 5½ ft. only, and that appellant no. 2 and the mortgagor, Khakhan Shah, were not necessary parties to the suit. The JUDGMENT : of the appellate court was delivered on the 12th January, 1959. The suit out of which this appeal arises, namely, Title Suit No. 57 of 1959, was filed on the 29th April, 1959. The plaintiffs claimed that they came to know of the decisions in the aforesaid suit and the appeal on the 31st January, 1959. The plaintiffs sought for a declaration that they were tenants of the disputed shop having an area of 21 ft. x 10½ ft. (the we stern half of the entire room) en a monthly rental of Rs. 37/- and that the appellants were joint mortgagor-landlord and defendant no. 3 Khakhan Shah, the mortgagor-landlord. They averred that the decisions in the aforesaid Title Suit No. 85 of 1956 of the First Court of the Munsif at Chapra and in the appeal arising therefrom against defendant no. 4 were not binding on them. Appellant no. 1 also filed two suits in the same Court. In Money Suit No. 396 of 1959, he claimed arrears of rent from July, 1956 to June, 1959 at the rate of Re. 49/- per month in respect of the portion of the room mortgaged to her. In Title Suit No. 137 of 1959, she claimed eviction on the ground of non-payment of rent at the aforesaid rate for the months of July and August, 1959. The two suits by appellant no. 1 were instituted only as against defendant no. 4 here; but plaintiffs of Title Suit No. 57 of 1959 intervened and they were added as defendants. Defendant no. 4 did not file any written statement or contest any of the three suits. The defence of the plaintiff-respondents in the two suits filed by appellant no. 1 was the same as was their case in their own suit. In the suit out of which the present appeal arises the case of the appellants was that Ghafoor was a tenant only in respect of 21 ft. x 5½ ft. towards west which was mortgaged to appellant no. 1; that he was not a tenant in respect of that portion of the room which was mortgaged to appellant no. In the suit out of which the present appeal arises the case of the appellants was that Ghafoor was a tenant only in respect of 21 ft. x 5½ ft. towards west which was mortgaged to appellant no. 1; that he was not a tenant in respect of that portion of the room which was mortgaged to appellant no. 2 and that the new tenancy in favour of defendant no. 4 was created only in respect of the portion which was originally let out to Ghafoor. They also averred that the suit was barred by res-judicata by the decisions in Title Suit No. 85 of 1956. 3. Both the Courts below have decreed the suit of the plaintiff-respondents and dismissed that suits filed by appellant no. 1. They have disbelieved the case of appellant no. 1 of creation of a new tenancy in favour of defendant no. 4 and further held that the legal rent was only Rs. 37/- per month and its enhancement to Rs. 49/- per month was illegal. They have also held that the tenancy in favour of Ghafoor was in respect of 21 ft. x 10½ ft. towards west and that the decision against defendant no. 4 in Title suit No. 85 of 1956 would not operate as res-judicata against the plaintiff-respondents. 4. While discussing the question of res-judicata, the lower appellate court has held that "it is proved that Norul Hoda made the contest in title suit No. 85/56 with the full knowledge and consent of the respondents, and expenses were met from their business account." It has then observed that position obtaining would be that the points would be res-judicata against the respondents so far as Prabhawati Devi (appellant no. 1) is concerned but that would be open to trial in this suit for as Ramsakhi Devi (appellant no. 2) is concerned; but as the findings in the present suit may be contrary to those arrived in the previous suit and it would be difficult to reconcile the contradictory findings, the bar of res judicata could be applied even against appellant no. 1. 5. Mr. Kailash Roy, appearing on behalf of the appellants, has strongly challenged that reasonings of the court of appeal below and has urged that, after having held that the findings in the previous suit would operate as res judicata as against appellant no. 1. 5. Mr. Kailash Roy, appearing on behalf of the appellants, has strongly challenged that reasonings of the court of appeal below and has urged that, after having held that the findings in the previous suit would operate as res judicata as against appellant no. 1, the court below is not correct in not applying the bar only because that will lead to contradictory findings in the present suit. He has further contended that, on the finding recorded by the lower appellate court, the final court of fact, really the plaintiff-respondents fought the previous suit, and, therefore, the decision in the previous suit against defendant no. 4, who was merely their agent, would bind them and would operate as res judicata against them. In my opinion, Mr. Roy is right in submitting that the Court below is not correct in refusing to apply the bar of res judicata in favour of appellant no. 1 merely on the ground that in the present suit the findings against Ramsakhi Devi would be contradictory to the findings recorded in the previous suit. True it is that in appropriate cases a decision against an agent may operate as res judicata against the principal. According to Mr. Roy, the principal is bound by the decision against his agent just like a real owner who is bound by a decision against his benamidar. There is paucity of case law on the question of a decision against the agent operating as res judicata against the principal. Mr. Roy has placed reliance on a Bench decision of this court in (1) P. Girdharan Prasad Missir v. State of Bihar (A.I.R. 1968 Patna 77). On the other hand, Mr. S. C. Ghose, learned counsel for the respondents, has placed reliance on the decision in (2) Townsend v. Bishop (1939) 1 All England Law Reports 805). The facts of both these cases are distinguishable and they are not of any real help to us. It has been observed by Lewis, J. in (2) Townsend's case that the point was not easy, and I too must confess that the point is a difficult one. Mr. The facts of both these cases are distinguishable and they are not of any real help to us. It has been observed by Lewis, J. in (2) Townsend's case that the point was not easy, and I too must confess that the point is a difficult one. Mr. S.C. Ghose, learned counsel for the respondents, has submitted that, since in Title Suit No. 85 of 1956 it was neither the case of the plaintiff nor the defendant of that suit that the defendant was an agent of the present plaintiffs and also in view of the fact that in the present suit the case of the appellants is that there was a new tenancy in favour of defendant no. 4 and the plaintiffs were not the tenants, the decision in the previous suit could not operate as res judicata in the present suit. However in view of the finding of the lower appellate court that defendant no. 4 contested Title Suit No. 85 of 1956 with the full knowledge and consent of the plaintiffs of the present suit and the expenses were met from their business account, if it would have been necessary to decide the question, I would have held in this appeal that the decision in the previous suit, in so far as the area under tenancy is concerned, would have operated as res judicata in the present suit. The decision in the previous suit cannot operate as res judicata on the question of rental inasmuch as that was not decided in that suit and the suit was mainly a suit for rent. I am, however, of the view, for the reasons to be stated hereinafter, that there is substance in the contention of the learned counsel for the respondents that the present appeal is barred by res judicata by the decision in the other two suits, which were heard along with it both at the trial and the lower appellate stages, and as against the JUDGMENT :s and decrees whereof no appeals have been filed to this court. 6. The trial court, while dismissing the two suits of appellant no. 1, observed that the plaintiff of those suits (appellant no. 1 before us) was claiming a much higher rent for half area of the tenancy and as defendant no. 6. The trial court, while dismissing the two suits of appellant no. 1, observed that the plaintiff of those suits (appellant no. 1 before us) was claiming a much higher rent for half area of the tenancy and as defendant no. 4 had tendered and deposited the rent for the period in respect of which those two suits had been filed, they were to be dismissed. For the months of July and August, 1959, defendant no. 4, had tendered rent to appellant no. 1 by Money ORDER :at the rate of Rs. 24.50 paise per month. That was considered by the trial court as a valid tender. Thus, it is apparent that the trial court, while dismissing those two suits, relied on the other finding given by it that the tenancy was in respect of 21 ft. x 10½ ft., and not only 21 ft x 5¼ ft., as was the case of appellant no. 1. It may be stated here that the issues framed in all the three suits were common and issue no. 5 was:- "What is the area and rent of the premises leased out to Ghafoor? Are the plaintiffs the tenants of the same? What is the legal rent of the disputed premises ?" The lower appellate court, while dismissing the appeal filed against the decision in Money Suit No. 396 of 1959, observed that the deposits made by defendant no. 4 of Rs.49/- were made jointly in favour of the two appellants, and as appellant no. 1 claimed the entire rental for herself while there was another mortgagee, appellant no 2 also, the deposits could be regarded as a valid discharge of the liability. According to that court also, therefore, the deposit in the joint names of appellants 1 and 2 was a valid deposit. In other words, that court too for dismissing the appeal arising out of the money suit used its finding that the tenancy was in respect of 21 ft. x 10½ ft. and appellant no. 1 was not the only mortgagee-landlord of that area. In the circumstances, I am not prepared to accept the contention of learned counsel for the appellants that those two suits were dismissed merely on the ground that there were no arrear of rent. x 10½ ft. and appellant no. 1 was not the only mortgagee-landlord of that area. In the circumstances, I am not prepared to accept the contention of learned counsel for the appellants that those two suits were dismissed merely on the ground that there were no arrear of rent. The two suits were dismissed on the basis of other findings as well which have been recorded in common for all the three suits. No appeals having been filed before this court against the decision in those two suits, the decisions of the courts below in those two suits operate as res judicata as against appellant no. 1 for the purposes of this appeal, as held by a Bench of this court in (3) Raghunandan Singh v. Smt. Soubhagya Sundari Devi (A.I.R. 1948 Patna 191). The appeal of appellant no. 1 must, therefore, fail as being barred by res judicata. So far as appellant no. 2 is concerned, she was not a party to Title Suit No. 85 of 1956. Therefore, she cannot claim that the decisions in that suit would operate as a bar to the decision in the present suit. The present suit has been decreed as against appellant no. 2 on merits, and I find no good reasons to interfere with the decrees of the courts below as against her. Really, the main question argued on behalf of both the appellants was that the decision in Title Suit No. 85 of 1956 would operate as res judicata in the present suit and that point is not available to appellant no. 2. 7. For the foregoing reasons, I find no merit in the appeal. It is, accordingly, dismissed with costs. A. N. MUKHARJI, J. I agree. Appeal dismissed.