1. The question in this appeal is, whether the plaintiff-appellant is entitled to a refund of a certain amount which he paid to the defendants-respondents in respect of the latter's one-sixth share of the revenue of the sharkati inam jahagir of Varkhade in the Shevgaon Taluka in the Ahmed nagar District. Both the lower Courts held that the plaintiff's claim was res judicata and that he was not entitled to a refund nor to the declaration he sought of his non-liability for any amount suspended or remitted for subsequent years.
2. The village in question, as stated above, is a dumala sharkati inam village, that is to say, Government are entitled to half the assessment and the Jahagirdar to the other half. The plaintiff-appellant is the managing Jahagirdar and the defendants-respondents have a one-sixth share in the Jahagir. The assessment is made in a Tharavband and is recovered by Government and the inamdar's one-half is subsequently paid to the managing Jahagirdar the appellant, as appears from the evidence of the Collector's Chitnis Exhibit 31.
3. In suit No. 104 of 1895 of the Shevgaon Court by the defendant-respondents' predecessors against the predecessor of the appellant, a compromise decree was passed ordering that the plaintiffs in that suit should receive a one-sixth share out of the 'vasuli rakam' every year and that the defendant should pay to the plaintiffs one-sixth every year in the month of May. In 1900 defendant No. 1 applied in execution for the recovery of the one-sixth share, which the plaintiff had declined to pay, on the ground that the land revenue had been suspended by Government. That darkhast was allowed in favour of defendant No. 1 and similarly the second darkhast in 1921. In 1922, Government ordered that the land revenue for the year 1918-19, which had so far been only suspended, should be remitted. The defendants had already recovered their one-sixth share of the revenue for 1918-19 under the darkhast of 1921. The plaintiff sued in the present suit for a declaration that the defendants had no right to recover this one-sixth share in the year in which the Collector had suspended or remitted the revenue and claimed a refund of the amount remitted for the year 1918-19. The defendants set up the decree and the order in the previous darkhast and contended that the claim was res judicata. Both the lower Courts upheld the defendants' contention and dismissed the claim as res judicata. The plaintiff appeals.
4. In the original application the plaintiff included a declaration in respect of the revenue suspended. It is conceded on his behalf in this Court that that claim in so far as it relates to the suspended revenue is res judicata by reason of the orders in the two darkhasts of 1900 and 1921. The present appeal is, therefore, confined, whether as to the refund or the declaration, only to the revenue remitted. The lower appellate Court thought that the present claim fell under Section 47, Civil Procedure Code. That view is not, in my opinion, correct. The present claim is for a refund and a declaration. The refund at least could not be claimed under the decree. Even in respect of the declaration it cannot he said that it is contained in the decree. The appellant at the most, urge that the decree is silent while the respondents contend that the deoree on its previous construction in the two darkhasts is inconsistent with the present claim. Under these circumstances, it is necessary for the plaintiff to make the present claim by a suit and not by an application in execution : Kheirapal Singh Roy v. Shyama Prosad Barman I.L.R. (1904) Cal. 265
5. The two questions in this appeal are, firstly, whether the present claim is res judicata by reason of the findings and orders of the two darkhasts of 1900 and 1921, and secondly, if not, whether the appellant is entitled to a refund in respect of the revenue remitted in the year 1918-19 and a declaration for the revenue remitted in the subsequent years.
6. On the first point, both the previous darkhasts were in respect of the revenue suspended. There was no issue nor an express decision on the question of the revenue remitted. The learned Subordinate Judges expressed no opinion as the point did not arise at any rate in those proceedings. The darkhast of 1900 contains no expression of opinion on the point, Such a claim as the present can only be res judicata by reason of a decision or at least a finding. None such is forthcoming in the previous darkhasts. The respondents are thrown back upon the construction of the decree in those darkhasts and upon cases such as Bern Ram v. Nanhu Mal I.L.R. (1884) All. 102 This case has no application to the present facts. When one darkhast held that the decree gave interest at a certain rate, the question of that rate of interest in the decree could not be subsequently re-agitated in a second darkhast. Here the construction would, at the most, be a ratio decidendi and cannot support the plea of res judicata. Even on the question of construction, the previous construction merely came to this: The question in the previous darkhast was the meaning of the words vaauli rafiam in the decree. The plaintiff contended that by vasuli rakmm was meant the amounts actually received in his hands from Government, The defendants contended that the amount meant the assessed amount. The plaintiff's contention was negatived and the defendants' contention was accepted. The question in both the darkhasts as observed was(whether the defendants were, or were not entitled, to the revenue suspended and not in the hands of the appellant. The present question differs in two essential respects, firstly, that it is a question of the amount remitted and not suspended, and secondly, it is a question of a refund of the year 1918-19. For these reasons, I am clearly of opinion that the present claim is not res judicata by reason of the findings and orders in the two previous darkhasts.
7. As regards suspension and remission, the present rules promulgated in 1907 are to be found in Mr. Joglekar's Land Revenue Code. Out of them pages 620 to 625, and Rule 5 at p. 621, Rule 2, Clause 3 at page 628 and Rule 9 at page 625 have been brought to my notice for the appellant. They merely in effect direct that in case of a total or partial failure of the crops the villages including inam villages are entitled to certain suspension, provided Government are satisfied that the remission reaches the tenants and does not stop with the Inamdar. On the question of revenue remitted, the decree is silent. These rules did not exist in 1895. It is a matter of common knowledge that previous to the Gujerat famine of 1900 and what is called 'The Maconochie Inquiry,' suspensions and remissions, if at all, were only granted in individual cases. They were not, in my opinion, in the contemplation of either party at the time of the consent decree in 1895; and no reason appears and none has been shown, why the appellant merely because he was the eldest and the managing Inamdar should make himself liable to pay his co-sharers an amount which he would never receive from Government. He obtained no profits for the guarantee of payment even in bad years. The present question is really onthe merits outside the compromise decree as far as the word1' of the decree go. The decree was, however, passed merely on the respondents' one-sixth share of the revenue. It is not alleged for the respondents that there is any such custom of the managing Inamdar paying one-sixth revenue remitted or not obtained. The case of the revenue suspended stands on a different footing. From the evidence of the Chitnis, it appears that it is only filter three years continuous bad seasons that a remission is given by Government. The claim which the defendants wished to enforce in the suit of 1895 and which was contemplated by the compromise or the consent decree was a sixth share of the actual Inam revenue. That share was to be paid in May, and therefore it is intelligible, that the Courts in considering the question of suspension would have to hold that the definite and ensuring payment in May o the respondents mus override the fact of the suspension, that is, delay in payment by the cultivator to Government and by Government to the plaintiff. The definite date May sufficiently explains this view in regard to the revenue suspended. In regard to remissions, however, the case is widely different. The cultivator does not pay Government and Government does not pay the inamdar. There appears to be no reason why the respondents should claim to retain the amount remitted merely by reason of the date May in the decree though it had been held that suspensions should not delay payment to them. The decree does not refer to the Tharavband. The defendants claimed in the darkhast of 1900 the suspended revenue. The Court held that the vasuli rakam referred to the revenue assessed and not the revenue actually obtained. That construction and the ratio decidendi are not necessarily binding in considering the present question of the revenue remitted and therefore irrecoverable by the Inamdar. The learned Subordinate Judge has himself observed that the equities are entirely with the appellant and not with the respondents. In regard, therefore, to the refund, I am of opinion that both the lower Courts were wrong. The question is not res judicata and the appellant is in equity entitled to such a refund of the amount remitted. For the same reason, the decree itself being silent, there appears no sufficient reason in this view to refuse him the declaration in regard to the revenue remitted in future years.
8. I Bet aside the decree of the lower appellate Court dismissing the suit, and allow the appeal in respect of the refund of the revenue for the year 1918-19 and in respect of a declaration of the revenue remitted in future years but not in regard to the revenue suspended.
9. The appellant has succeeded in respect of remission but has failed in respect of suspension. Each party will pay its own costs throughout.