JUDGMENT : ( 1. ) THIS is plaintiffs second appeal. His suit for declaration of title, possession and mesne profits has been dismissed on the plea of res judicata raised by the defendant. ( 2. ) THE plaintiff had filed earlier, Civil Suit No. 37a of 1967 in the court of the IV Additional Civil Judge, Class II, Jabalpur for the defendants ejectment and arrears of rent. According to him, the defendant was inducted as a tenant by Mst. Parwatibai. She died in or about 1960. She had executed a will on 13-4-1953 and got it registered under which the plaintiff was the sole legatee. The plaintiff thus became the landlord of the defendant and also the owner of the house. The plaintiff said that he required the accommodation bona fide for the residence of the members of his family and he had no other suitable accommodation of his own in the town. ( 3. ) THE defendant denied the plaintiffs title. He denied the execution of the will by Parwatibai and her capacity to bequeath. He also denied having paid rent to Parwati or anybody on her behalf. The plaintiffs bona fide need was also denied. ( 4. ) THE plaintiffs suit came to be dismissed. He preferred an appeal. That also was dismissed. The copy of the appellate judgment is on record. It is Ex D-4. The learned District Judge found in favour of the plaintiff that the defendant was Parwatis tenant. But, since the plaintiff had not proved the will by examining one of the attesting witnesses, as required by section 68 of the Evidence Act, he could not be said to have proved his ownership over the house, nor could he be treated as the landlord of the defendant. The appeal thus failed. The plaintiff did apply for permission to produce additional evidence but the learned District Judge declined permission. ( 5. ) THE plaintiff the filed the present suit for declaration of his title, possession and for mesne profits. The Courts below have held that the suit was barred by res judicata. The appeal thus failed. The plaintiff did apply for permission to produce additional evidence but the learned District Judge declined permission. ( 5. ) THE plaintiff the filed the present suit for declaration of his title, possession and for mesne profits. The Courts below have held that the suit was barred by res judicata. According to them, the defendants eviction was sought on the ground specified in clause (e) of sub section (1) of section 12 of the Madhya Pradesh Accommodation Control Act (hereinafter referred to as the Act) which necessarily required the plaintiff to prove that he was not only the landlord of the accommodation; but also the owner thereof, and that he bona fide required the accommodation for occupation for himself or for any member of his family. The question of ownership was not incidental in the trial, but one substantially and directly in issue. And unless the plaintiff proved his ownership, he could not succeed in evicting the tenant on the ground covered by section 12 (1) (e) of the Act. The same question of ownership, the Court said, was being reagitated in the present suit, between the same parties and the Court giving decision in the earlier suit was competent to hear the present one; section 11 of the Code of Civil Procedure then fully applied. ( 6. ) MY pertinent query to the learned counsel for the respondent was whether the plaintiff could approach the District Judge for a probate and after the will was probated, could he file the present suit as a sole legatee? The probate proceedings, I said, were not barred and any decision regarding the validity or proof of the will in the rent suit, could not be conclusive. Besides a tenant had no locus standi to file a caveat because his interest of tenancy was not likely to be affected or prejudiced by the will. (See-ILR (1967) 2 Cal. 684, cited from AIR Manual, Volume 20, Note 11 on section 283 of the Indian succession Act ). Before a person could be permitted to contest a will, the propounder of a will has a right to call upon him to show that he has some interest [see- L. S. Rajamanikam v. W. H. Farrar (AIR 1923 Mad. 131)]. 684, cited from AIR Manual, Volume 20, Note 11 on section 283 of the Indian succession Act ). Before a person could be permitted to contest a will, the propounder of a will has a right to call upon him to show that he has some interest [see- L. S. Rajamanikam v. W. H. Farrar (AIR 1923 Mad. 131)]. Such being the position of the tenant, his only interest was to see that the right person claimed from him the rent after the death of Parwati Bai and that the person concerned gave him effective discharge for the rent paid. The real contest on title could be between the person who claimed under the will and those to whom the property would pass by inheritance but for the will. The tenants denial of title in an eviction or the rent suit, had thus a very limited scope, firstly because the persons in whom the title could possibly vest were not before the Court and secondly because any decision on a question of title as between the person suing and those third persons whose title has been set up, or deemed to have been set up, would not be binding on them for the reasons that the tenant would not represent their interest in the suit. It logically follows that any decision on a question of title even though tried in a rent suit, would be a decision on an issue incidentally arising. That would not be conclusive between that rival claimants to title. ( 7. ) THE learned counsel for the respondent cited numerous decisions, and some of our own High Court, for the proposition that where question of title has been directly and substantially tried in a rent suit, the decision would operate as res judicata. (To quote a few, see-John Agabeg Vertannes v. James golder Robinson and others (AIR 1930 PC 224); Malaya Kumar v Fakir Mohammad (AIR 1930 PC 224); Umedram v. Laxminarayan (S. A. No. 523 of 1964 decided on the 8th February 1965) and Sattar v. Nehaldas (1974 MPLJ Note 122= (M. (F) A. No. 84 of 1971 decided on the 6th January 1972.) ). ( 8. ) SOME authorities for the proposition that question of title incidentally tried in a previous rent suit would not operate as res judicata may also be cited. ( 8. ) SOME authorities for the proposition that question of title incidentally tried in a previous rent suit would not operate as res judicata may also be cited. They are Run Bahadur Singh v. Lucho Koer (1974 MPLJ Note 122= (M. (F) A. No. 84 of 1971 decided on the 6th January 1972.)) Dwarkanath Roy v. Ram Chand Ajeh (XXVI ILR Cal. 428 (F. B,)) Muktakeshi Dassi v. Manilal Jana (LVIII L R Cal. 371) and Basantilal v. Ramcharan (ILR 1956 M B 296 ). ( 9. ) MUKTAKESHI Dasi v. Manilal Jana gives a clue for a solution to the problem. Their Lordships draw a distinction between cases in which the defendant in a rent suit sets up his own title and cases in which the defendant pleads jus tertii. Their Lordships say : "in the first class of cases the decision in the rent suit should operate as res judicata, as it was a decision between parties laying conflicting claims to the properly under similar title. In the second class of cases the decision in the rent suit should not operate as res judicata. " The distinction is based on sound logic. The tenant in the latter case does not claim title in himself but sets up a third party as landlord and does not claim any higher rights than that of a tenant. Any decision on a question of title in such a case would be incidental. ( 10. ) NOW coming to the present case, though the defendant had denied his tenancy with Parwatibai, the Courts found him to be her tenant. Had the plaintiff succeeded in proving the will, he might have obtained a decree for ejectment or arrears of rent. But the decision on the question of title would all the same have been an incidental or collateral decision, since the rightful claimants of Parwatis property, if they were any, could yet challenge the will and testamentary capacity of the lady. ( 11. ) TAKE a coverse case. Supposing the tenant had recognised the plaintiff as the sole legatee and paid him rent, but later learnt that the will was a forgery or that the real heirs were different persons. ( 11. ) TAKE a coverse case. Supposing the tenant had recognised the plaintiff as the sole legatee and paid him rent, but later learnt that the will was a forgery or that the real heirs were different persons. In a subsequent suit, the tenant would not be estopped from showing that he had attorned to the plaintiff under some mistake and had paid him rent, and that he in fact, had no title-See Benni Madhub v. Thakurdas ( (1866) BLR Sup. Vol. PP. 585, 590 (F. B) ). If there was no bar of res judicata or estoppel against a tenant who suffered a decree on a mistaken belief that the plaintiff was his landlord, the plaintiff should as well not suffer, if he failed to prove bis derivative title by an inadvertant omission to examine an attesting witness of the will. And that proof of title again had no finality because the rightful claimants could come forward any time and dispute both the will and the testamentary capacity of the testator. ( 12. ) I have no doubt whatsoever, therefore, that the question of title raised in the earlier rent suit was only incidentally tried. ( 13. ) IT would be pertinent to note that in the earlier suit, there was no issue framed on the validity, execution and attestation of the will and it is the issue fixed and not the pleadings that guide the parties in the matter of adducing evidence. The plaintiff was under the impression that he was not called upon to prove the will. The will was a registered document and he thought that the registration would raise a presumption of everything having been done duly and fairly. At any rate, the wishes of testatrix could not be thwarted merely by reason of want of some technicality. The Court, as a court of conscience, could call upon the plaintiff to summon the attesting witnesses in order to satisfy itself whether the will was duly executed or not. See-Vishnu ramkrishna and others v. Nathu Vithal and others (AIR 1949 Bom. 266) ( 14. ) UNDER the circumstances, when there was no direct issue raised on the execution, attestation and validity of the will and when evidence was shut out on a technical ground, it will be difficult to treat the decision as one given on merits. See-Vishnu ramkrishna and others v. Nathu Vithal and others (AIR 1949 Bom. 266) ( 14. ) UNDER the circumstances, when there was no direct issue raised on the execution, attestation and validity of the will and when evidence was shut out on a technical ground, it will be difficult to treat the decision as one given on merits. Such a decision should not operate as res judicata. Besides that was a decision given without the pros and cons of question being considered, inasmuch as the tenant would become the owner of the house since heirs inlaw of Parwati would not come forward because of the will and the plaintiff must lose the property for not having proved the will in the rent suit. Such a decision would not acquire finality, to bar a subsequent suit. ( 15. ) IN the result, the appeal is allowed. The decision given in Civil Suit no. 37a of 1967 will not operate as res judicata on question of title. The suit must, therefore, be tried on merits. The decree of the Court-below dismissing the suit is set aside. Costs on respondent. Counsels fee as per schedule. Appeal allowed.