Madhavan Nair, J.
1. The plaintiff, the Rajah of Vizianagaram, is the appellant. He claimed rent from the defendant for the suit land in respect of Faslis 1332 to 1334 at the rate of Rs. 364-0-6 per Fasli, The defendant contended that he was liable to pay only at the rate of Rs. 239-15-5 and that the settlement rent at the higher figure is not binding on him. The plaintiff replied that the defendant was precluded from raising these pleas by virtue of the decision in S.S. No. 31 of 1920 which he contended would operate as res judicata between the parties. The two points for determination are (1) whether the prior decision in S.S. No. 31 of 1920 in favour of the higher rate claimed by the plaintiff is res judicata and : AIR1926Cal767 whether the settlement rent at the higher figure is binding on the defendant. On both these points the lower Courts found in favour of the defendant.
2. I may state at once that the finding on second point that the settlement rent at the higher figure is not binding on the tenant is a finding of fact based upon the evidence in the case. Both the lower Courts have considered the evidence which is to the effect that the settlement rent was never collected from the tenant and that he never executed any kadapa for the same. The District Judge says 'There is ample evidence that the landholder treated in his accounts the higher rate as only on paper and that Exs. III and IV are clear evidence that in the Faslis mentioned therein the tenant did not pay the settlement rent'. The finding that the settlement rent at the higher figure now claimed is not binding on the defendant cannot be questioned in second appeal.
3. The substantial question for consideration is whether the prior decision in S.S. No. 31 of 1920 in favour of the higher rate claimed is res judicata. In S.S. No. 31 of 1920 the plaintiff, the Rajah of Vizianagram, by his trustee claimed Rs. 1,044-12 for rent and interest for three Faslis 3327, 1328 and 1329 deducting certain payments made by the defendant. In the plaint he worked out the calculation of the amount due to him at the rate of Rs. 364- 0-6 stating that it was the amount mentioned in No. 50, putta and muchilika. The defendant contended that he was not liable to pay Rs. 364 0 6 mentioned in the plaint but only Rs. 230 2-6. No issue was raised as regards the rate of rent payable by the defendant per Fasli. As the defendant was absent when the case was taken up for trial he was declared ex parte, and the following judgment was passed. 'Suit to recover arrears of rent Rs. 1,044 12-0 due on patta No. 50 of Konduvelagala. Defendants absent and declared ex parte. Plaintiff filed affidavit supporting the claim. Decree for the suit amount with costs.' The question for decision is whe-this ex parte decree for arrears of rent for the prior Faslis 1327 to 1329 [can operate as res judicata between the parties as regards the rate of rent in the suit for rent for the subsequent Faslis 1332 to 1331.
4. In support of his contention that the decree is res judicata the learned Advocate for the appellant relied upon two decisions of this Court both of which are distinguishable. In Govindoss Krishnadoss v. Polegar Manikyanayanim Varu : AIR1925Mad378 the exact question which I have to decide did not arise for decision though in the course of the judgment there is a dictum that 'no doubt in the case of rent suits the decision as regards the rent for one year would be res judicata as regards the rate of rent for any of the following years.' In that case the question was whether the decision in a prior suit that jodi was payable was res judicata between the parties in a subsequent suit. The tenants in the subsequent suit relied on a deed of gift from the landholder which excepted them from payment of the jodi, which, however, was not pleaded by them in the prior suit in which there was a specific issue whether no jodi at all is payable. It was held that since the contention which could have been raised was not raised by the tenants in the prior suit, it was not open to them to raise it in the later suit and that the point was, therefore, res judicata. In the present case the defendant contended on the prior suit that the rent was only Rs. 239 and not Rs. 364 as claimed by the estate, but no issue was raised and there was no trial of the question as regards the proper rate of rent. In Civil Revision Petition No. 230 of 1924 the defendant in the prior suit took no objection to the rate of rent in the trial Court nor in the memorandum of civil revision petition but took the objection in argument. The objection was disallowed as having been taken too late. It was held that since the objection to the rate of rent which could have been raised by the defendant in the prior suit was not raised by him then, it was not open to him to raise the objection in a later suit and the point was, therefore, res judicata. In the present case, as already pointed out, the question was raised by the first defendant but there was no issue on it nor was the question tried.
5. On this question, as pointed out in Maheswari Dei v. Gourhari Maity : AIR1926Cal767 there is a good deal of divergence of opinion in the Calcutta High Court. The preponderance of opinion seems to be in favour of the view that an ex parte decree in a rent suit allowing the plaintiff's claim at the rate of rent alleged in the plaint does not operate so as to render the question of the rate of rent annually payable res judicata, unless there was a prayer in the plaint for a declaration as to the rate of rent as part of the substantive relief claimed. See Modhusudun Shaha Mondul v. Brae 15 C. 300; Brajendra Kumar Roy v. Sarajendra Nath Saha 45 Ind. Cas. 416; Nafar Chandra Pal v. Bhusi Molla 65 Ind. Cas. 581 and Sivadas Dutta v. Birendra Krista Dutta 94 Ind. Cas. 844 : 43 Cri.L.J. 116. No useful purpose will be served by examining all these cases in detail.
6. The decision in Umed Ali Munshi v. Goyjaddi Molla : AIR1926Cal114 to the effect that an ex parte decree for rent obtained against a tenant operates as res judicata on the question of the relationship of landlord and tenant between the parties in a subsequent suit for ejectment does not help the appellant as the present question regarding the rate of rent did not arise for decision in that case. In Sitaram Sekharam Nangle v. Laxman Vishnu Ketkar 64 Ind. Cas. 162 : 45 B. 1260 : 23 Bom. Lr. 749 another case relied upon by the appellant, it is pointed out that the fact of the causes of action being different in the two suits cannot affect the plea of res judicata and what is necessary for the application of the doctrine is that the matter in issue in the subsequent suit was directly and substantially in issue and was heard and finally decided in the previous suit. See page 1281 per Shah, J. It seems to me that the effect of these decisions is this viz., that it is not correct to state as a general proposition of law that an ex-parte decree for arrears of rent operates or does not operate as res judicata regarding the rate of rent in a subsequent suit. The question whether such a decree is res judicata or not must be determined with reference to the specified facts of each case. As Mr. Gaspers points out in his learned work on Estoppel at page 247, the question has to be asked whether the Court has found what is the proper rate of rent in the prior suit, and for this we have to see whether the question as regards the rate of rent was raised by the parties, whether it having been raised by the plaintiff the defendant failed to take the objection which he could have taken, whether there was an issue on the question and whether the point was decided by the Court. In the present case no issue was raised in the prior suit, as to the rate at which the rent was payable by the defendant nor was there any decision with regard to such rate in the judgment of the Court. In these circumstances I hold agreeing with the lower Courts that the ex parte decree in S.S. No. 32 of 1920 for arrears of rent for Faslis 1327 to 1329 does not operate as res judicata as regards the rate of rent annually payable in the present suit for rent for the subsequent Faslis 1332 to 1334.
7. The second appeal is dismissed with costs.