1. This batch of second appeals arises out of a number of suits for rent for different Faslis under Sections 77, Estates Land Act. There are two holdings under the tenant: one holding tinder Patta No. 38 and another holding under Patta No. 54. Rent is claimed for portions of the suit holdings at a rate higher than the dry rate on the ground that there are cocoanut gardens in these holdings. In a former litigation between the same parties which culminated in S.A. No. 433, etc., of 1924 the same claim was made. The defendant ryot resisted the claim at the higher rate on the ground that a cocoanut plantation was an improvement within the meaning of Sections 3(4)(f), Estates Land Act, and that he is not liable to pay the higher rate and is liable to pay only the dry rate. It was held by Devadoss and Wallace, JJ. in Vellaypppa Chetti v. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978, that the planting of a cocoanut garden was not an improvement under the Act and that the plaintiff was entitled to the enhanced rate. The same holdings are the subject-matter of the present suits. It is conceded by the appellant that so far as Patta No. 38 is concerned, the cocoanut plantation now existing is merely the old plantation, but as to Patta No. 54 it is said that at the time of the former litigation only a portion viz.,7 karukams, was planted with cocoanut plants but now a larger area is sought to be charged at the higher rate. I will refer to this question of additional area, later on. Leaving this aside, two questions arise in the present second appeals. The first is whether cocoanuts are fruits and a cocoanut plantation can be regarded as a fruit garden within the meaning of s 3 (4) (f), Estates Land Act. So stated, this question is undoubtedly a question of law, viz., the construction of an Act, the question being whether a particular term in the Act can be so interpreted or defined as to cover a particular class of trees.
2. Now it may be said that the fruit of the cocoanut tree is not a fruit in one sense of the term but is a nut and apparently this was the view that prevailed with Devadoss and Wallace, JJ. in Vellayappa Chetti v. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978. But this case was considered in Sri Rajah Bommadevara Chayadevamma v. Venkataswami 62 M.L.J. 511 438 lnd. Cas. 40 : A.I.R. 1932 Mad. 3-43 : (1932) M.W.N. 264 : 35 L.W. 498 : Ind. Rul. (1932) Mad 481, by another Bench of this Court (Reilly and Ananthakrishna Ayyar, JJ.) and was dissented from. Both the learned Judges have dealt with the matter at some length and have given good reasons for differing from the former decision and for holding that cocoanut trees are fruit trees. Even Devadoss, J., from whose judgment the latter case came up in Letters Patent Appeal, held that cocoanut trees are fruit trees but he does not refer to the judgment in the other case reported in Vellayappa Chetti v. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978. It is unnecessary to repeat the reasons given by Reilly and Ananthakrishna Ayyar, JJ. I will only add the following considerations. In the Century Dictionary under ''cocoanut' we have 'the nut or fruit of the cocoanut tree.' And then under 'double cocoanut' we have 'the fruit of a remarkable palm.... the fruit often weighs 40 or 50 lbs....' Under 'sea cocoanut' we have 'the fruit of a species of palm.' In Murray's English Dictionary under 'double cocoanut' we have got practically the same sentence repeated. In common parlance the cocoanut is always referred to. as a fruit before the fibre is removed.
3. I therefore hold that cocoanuts are fruits and that cocoanut trees are fruit trees and a cocoanut plantation is a fruit garden within the meaning of Section 3(4)(f), Estates Land Act. It follows that the tenant who has effected improvements in these cases ought not to be liable for any additional rent beyond the dry rate. The next question is how far the defendant-appellant is affected by the rule of res judicata. As already mentioned, the former decision, which in the light of our present decision must be held to be erroneous, was between the same parties and in respect of the same holding. Mr. Rajah Iyer, the learned Advocate for the appellant, contends that an erroneous decision of law should not be held to be res judicata in a later litigation between the same parties relating to a different year and that the former decision should be confined to the year in respect of which the former litigation arose. The question how far an erroneous decision on a matter of law or on the terms of a tenancy would be res judicata has been considered in three decisions of this Court. The first one is Bayyan Nath v. Suryanara. yana 37 M. 70 : 17 Ind Cas. 415 : A.I.R. 1914 Mad. 39 : 23 M.L.J. 593. It was there held that a former decision as to the extent of a holding in a suit between a landlord and tenant relating to the validity of patta. under the Rent Recovery Act would be res judicata in respect of later years on the ground that it decides a general question not peculiar or special for that particular year. So far as this matter is concerned, the Estates Land Act is similar to the Rent Recovery Act, and if any question of general principle is settled in one litigation in respect of one year as regards the terms of patta, that would bind the parties for the future years also until new circumstances intervene. The next decision of this Court that I would refer to is Venkatanarasimhalu Naidu v. Venkataratnam 32 M.L.J. 63 : 37 Ind. Cas. 857 : A.I.R. 1918 Mad. 1309 : (1917) M.W.N. 321 : 5 L.W. 682. There the suits related to the recovery of a cess claimed by a zamindar from inamdars. The cess was payable annually. It was held that in cases where in a prior litigation the cess was held to be payable, that decision constitutes res judicata in litigation with respect to later years. The conclusion of the learned Judges is thus expressed:
'Where a decision on a point of law, whether it be on the construction of a document or of a statute or on common law or on customary law settles a question that arises directly out of conflicting view as to the rights of tho parties, it is res judicata.'
3. The reason of the judgment may be expressed thus, viz., that the former litigation settles the terms on which the two parties are related to each other in the matter of the holdings provided the decision and the terms are confined to the actual subject-matter of the suit. The earlier decisions of this High Court in Parthasarathi v. Chinna Krishnan 5 M 304, Mangalathammal v. Narayanaswami Iyer 30 M. 461 : 17 M.L.J. 250, and Natesa Chetti v. Vengu Nachiar 33 M. 102 : 3 Ind. Cas. 701 : 20 M.L.J. 20 : 6 M.L.T. 313., were dissented from. In Maharajah of Jeypore v. Ramamurthi 65 M L.J 684 : 148 Ind Cas. 221 : A.I.R. 1933 Mad. 925 : 57 M 73 : (1933) M.W.N. 510 : 38 L.W. 755 : 6 R.M. 449 (2), the same view was followed. An attempt to re-open the decision in Venkatanarasimhalu Naidu v. Venkataratnam : (1917)32MLJ63 based on the decision of the Privy Council in Broken Hill Proprietary and Co. Ltd. v. Broken Hill Municipal Council (1926) A C 91 : 95 L.J. P.C. 33 : 134 L.T. 335 was made but failed. That attempt is again repeated before us, Mr. Rajah Iyer contending that the decision in Venkalanarasimhalu Naidu v. Venkataratnam 32 M.L.J. 63 : 37 Ind. Cas. 857 : A.I.R. 1918 Mad. 1309 : (1917) M.W.N. 321 : 5 L.W. 682 and Maharajah of Jeypore v. Ramamurthi 65 M.L.J 684 : 148 Ind Cas. 221 : A.I.R. 1933 Mad. 925 : 57 M. 73 : (1933) M.W.N. 510 : 38 L.W. 755 : 6 R.M. 449 (2), should be re-considered in the light of the Privy Council decision just mentioned. In the same volume we have got Hoystead v. Commissioner of Taxation (1926) A C 155 : 95 L.J.P.C. 79 : 134 L.T. 354 : 42 TLB 207, another decision of the Privy Council. The earlier decision relates to the valuation of land for rating purposes. The second decision relates to land tax assessment and it was held that an admission on a fundamental matter in a prior case - and a decision stands on the same footing - estops a different contention in a later case. At first sight it looks as if these two decisions are in conflict. Possibly the earlier decision may be explained on the footing that the valuation of land for purposes of rating for each year is so peculiar to that year and has to be made on considerations confined to that year and should be so uninfluenced by considerations that prevailed in prior years that no question should be considered as a general principle and what happened in one year whether a matter of principle or a matter of detail should not be used in another year and therefore the decision of one year is not res judicata for another year. If that decision is not to be explained in that way and should not be regarded as inconsistent with the decision in Hoystead v. Commissioner of Taxation (1926) A C 155 : 95 L.J. P.C. 79 : 134 L.T. 354 : 42 TLB 207, I prefer to follow the latter decision. This is practically the view accepted in Maharajah of Jeypore v. Ramamurthi 65 M L.J 684 : 148 Ind Cas. 221 : A.I.R. 1933 Mad. 925 : 57 M 73 : (1933) M.W.N. 510 : 38 L.W. 755 : 6 R.M. 449 (2) as to these two cases. These cases have also been considered in Sankaralinga Nadar & Brothers v. Commissioner of Income-tax, Madras 58 M.L.J. 260 : 126 Ind. Cas. 273 : A.I.R. 1930 Mad. 209 : 58 M.L.J. 260 : 31 L.W. 738 : Ind. Rul (1930) Mad. 833 and a similar view was taken there of the first case.
4. It is said that in cases under the Bengal Tenancy Act, it has been held that a decision between landlord and tenant as to the rate of rent in a prior year does not constitute res judicata in later years when the question comes up. But even there it has been held that where the earlier decision decides a matter of general principle, it would be res judicata in later years: vide, Gnanada, Govindo v. Nalini Bala 43 C.L.J. 146 : 94 Ind. Cas. 837 : A.I.R. 1926 Cal. 650 : 30 C.W.N 593, and Ayetonnissa Bibi v. Amjad Ali : AIR1928Cal717 . It is true that in Calcutta a view prevailed at one time similar to the decision in Mangalathammal v. Narayanaswami Iyer 30 M 461 : 17 M.L.J. 250 Alimunnissa Chowdhurani v. Shama Charan Roy 32 C 749 : 9 C.W.N 466 : I.C.L.J. 176, but this decision has since been overruled by that Court in Tarini Charan Battacharja v. KederNath : AIR1928Cal777 . It is then argued by Mr. Rajah Iyer relying on a passage in this last judgment that some exception should be made to the principle of res judicata in matters of jurisdiction, limitation or procedure on grounds of public policy. It is difficult to conceive how the question of res judicata can arise for the same subject-matter in later years with reference to questions of jurisdiction, limitation or procedure. But here we are not concerned with any such question. It is suggested that the rules of the Estates Land Act are based on public policy and some exception should be made in such matters. We are not referred to any principle or authority to support such a proposition and I am unable to accept this contention. But as already observed, the principle of res judicata should be confined only to matters which actually existed at the time of the former decision. If there are new areas in Patta No. 54 which were not planted with cocoanut at the time of the former suit and in respect of which no claim for enhanced rate of rent was or could be made in the former suit, the matter is not res judicata in the present suit in respect of such areas. The respondent contended that even in respect of such areas the question of general principle is settled between the parties. There can be no res judicata laying down a wrong rule of law between parties for future guidance also. The decision must be confined to the matter to which it has been applied at the time of the former decision. Areas and trees to which it was not applied then will be governed by the correct principle of law It is said by the respondent that this matter was not raised earlier. The appellant claims that he did raise it. However the consideration of this question and how far the matter may be allowed to be raised are points which we leave to the learned Judge who would dispese of the second appeal in the light of the above observations, and if in his discretion, he thinks fit, he can allow those points to be raised in second appeal. In is for him and no : for the Full Bench to consider this question. With these observations these cases are remitted to the learned Judge for disposal.
5. I agree.
6. I agree
7. Now that the Full Bench have held that the decision in Vellayappa Chietti v. Subramanian Chettiar 50 M 482 : 99 Ind. Cas. 559 : A.I.R. 1927 Mad. 137 : 51 M.L.J. 880 : 24 L.W. 803 : (1926) M.W.N. 978 will operate as res judicata in respect of the areas then in question, it follows that S.A. Nos. 1148, 1150 and 1181 of 1932 fail and must be dismissed with costs in S.A. No. 1148 of 1932 only. S.A. Nos 1149 and 1151 arising respectively from S.S. Nos. 2627 of 1923 and 3861 of 1926 relate to lands covered by Patta No. 54. Even in respect of these lands, the former judgment will operate as res judicata except to the extent to which it can be said that in these second appeals which relate to later Faslis the claim for rent is made in respect of lands brought under cocoanut cultivation after the date of the previous suits relating to these pattas. Mr. Rajah Iyer states that in the former suits the claim at Rs. 2 per karukam was made only in respect of 7 karukams, whereas in the present suits that rate is claimed in respect of 9 karukams, and likewise the Rs. 5 rate in respect of the later Faslis. A distinction is sought to be suggested between the claim at Rs. 2 rate and the claim at Rs. 5 rate, and it is argued that the rule of res judicata ought not to be applied at any rate to the extent of upholding the Rs. 5 rate claim. I am not able to agree with this contention. The decision of the Full Bench implies that the allowance of Rs. 2 claim was on the footing that the contention that the tenant was not liable to pay in respect of improvements effected by him was not available to him by reason of the rule of res judicata. Once that contention is put aside, the contract alleged by the landlord is that up to a particular stage he is entitled to rent at Rs. 2 per karukam and at later stages he is entitled to rent at Rs. 5 per karukam. I therefore do not see any justification for saying that though on the basis of Rs. 2 it is res judicata, the claim for the same land at later stages at the rate of Rs. 5 will not be res judicata.
8. Mr. Rajah Iyer further suggests that the written statement in S.S Nos. 2627 of 1923 and 3861 of 1926 raised a question of fact that the trees have not in fact reached the stage when even on the basis of the agreement, as alleged by the plaintiff, the rent at Rs. 2 or Rs. 5 could be claimed at all. I see nothing of this contention put forward either before the Deputy Collector or before the lower Appellate Court. I am not satisfied that any evidence which the defendant wanted to offer to substantiate this contention was shut out. I am therefore unable to allow that point to be raised at this stage. A further point was sought to be raised by Mr. Rajah Iyer on the construction of the contract relied on by the plaintiff, namely that the mere fact tuat one tree or some trees begin to put forth spathe will not justify the landlord in claiming the higher rate of rent in respect of the whole area under cocoanut cultivation. This point, too, does not appear to have been raised in any of the Courts below. It cannot be said to be really a matter of law or construction which can be dealt with in second appeal. It will really have to be considered in the light of the course of conduct of the parties or usage in the neighbourhood, and 1 must therefore disallow it also as a point not raised up to this stage and which cannot be disposed of without further evidence.
9. Mr Muthusawami Iyer on behalf of the respondents is unable to state definitely whether Mr. Rajah Iyer's contention that in the old suits the claim was made and decreed only in respect of 7 karukams, whereas in the present suit the claim was made in respect of 9 karukams, is borne out by the record or not. But having regard to the fact that the rule of res judicata has got to be applied practically against the spirit of the provision made in the statute and seeing that the rule of decision in a matter of this kind has been the subject of so many conflicting pronouncements, I am not prepared to disallow the point raised by Mr. Rajah Iyer, which, alter all, can be determined from the records of the Court or at any rate from the relevant pattas. The District Judge is accordingly requested to make a report, after giving an opportunity to both the parties to place all relevant materials before him, whether the claim in S.S. Nos. 2627 of 1923 and 3861 of 1926, in so far as it relates to cocoanut plantation, is in respect of any area in excess of that which formed the subject-matter of S.S. Nos. 2582 of 1918 and 1638 of 1920, and if so, what is the extent of the excess area. The report to be sent before April 15, 1935.