1. This is an appeal under the letters patent from a judgment of a learned Judge of this Court. As the facts have not been quite correctly sat forth in the judgment of this Court, we propose to set them forth clearly and correctly.
2. There was one Kallua, an agricultural tenant, who held five plots of land the rent of which was Rs. 65 odd. The Zamindar brought a suit to eject him from all five on the allegation that he was a non-occupancy tenant. He resisted the suit, and in the result the Court found that he was occupancy tenant of three plots and non occupancy tenant of two. He accordingly was ejected from the two non occupancy plots. The present suit out of which this appeal has arisen was brought by the Zemindar to recover rent for 2 1/2 years from Kallua on the allegation that Kallua had agreed to pay a rent of Rs. 60 per annum for these three plots. Kallua pleaded that his rent was Rs. 40 and that the point was one that bad been decided in a previous suit between the parties. It appears that in one year the Zemindar distrained the crops standing upon the three occupancy plots and that Kallua under the duress of the distraint paid up the amount claimed. The rent then claimed was at the rate of Rs. 60 per annum. After that Kallua, however, brought a suit under Section 95 of the Tenancy Act for a declaration as to the rent payable by him in respect of his occupancy holding. In that case the Zemindar pleaded that the rent was Rs. 60 because Kallua had agreed to pay that rent after the ejectment suit. Kallua totally denied that and the Court held in his favour that no such agreement had been entered into by him. The Court then proceeded to declare that the rent of the three plots was Rs. 40 per annum. It is this decision which he has in the present ease put forward as being one behind which the Zemindar cannot go.
3. The Court of first instance held in favour of the tenant and gave a decree to the Zemindar for the balance due to him after calculating the rent at the rate of Rs. 40 per annum. The lower Appellate Court upheld this decision and the learned Judge of this Court before whom it same has held that the Zamindar is barred by the finding in the previous suit, that no agreement had been entered into to pay a rant of Rs. 60. He accordingly dismissed the appeal. He referred to a decision which was quoted before him and is to be found in Ram Charan Lal v. Karim-un-nissa Bibi 26 Ind. Cas. 121 : 12 A.L.J. 113 : 37 A. 12. That ruling has no application whatsoever to the facts of this ease and it is only, we fanoy, by reason of the misconception of the actual facts that the learned Judge of this Court thought that it did apply. The actual facts of this case are clear. There was one holding consisting of three plots of occupancy land and two plots of non occupancy. There was a consolidated rent of Rs. 65 odd. Two of those plots were taken from the tenant by process of law and the remaining three plots were rent-paying lard and there was a rent payable thereon. The suit brought by Kallua for a declaration as to the amount payable by him in respect of this holding was a perfectly good suit inasmuch as it was not a case of fixing a new rent or enhancing a rent. It was merely a case for a declaration of the rent that was payable, and all that the Court had to do was to distribute the original rent of Rs. 65 over the holding and ascertain what portion of that was attributable to the three occupancy plots. The suit was rightly brought under Section 95 and the decision in that suit was clear and operates as res judicata in the present suit. It is a decision behind which neither party can go. The appeal fails and is dismissed. We make no order as to costs as the opposite party has not appeared.