Richard Garth, C.J.
1. The Judges of the Division Bench having differed in opinion, and the judgment of the senior Judge having prevailed, this case comes before us on appeal from his decision.
2. The suit was brought by the plaintiffs to obtain a decree declaring that certain lands, which they hold as tenants to the defendant at a rent of Rs. 105, comprised an area of 8 drones, 7 kanis, and 2 gundas.
3. The Division Bench were agreed that, upon the facts proved, the plaintiff's were entitled to the relief which they prayed. But the objection made by the defendant, upon which the learned Judges differed in opinion, was, that in a suit, No. 308 of 1874, which was brought by the present defendant against the present plaintiffs for arrears of rent, an issue was distinctly raised between the parties, whether the land held by the plaintiffs at the rent of Rs. 105 was 4 drones, 7 kanis, and 19 gundas, as the then plaintiff contended, or 8 drones, 7 kanis, and 2 gundas, as the then defendants contended, and that upon this issue, evidence being given on either side, the Court decided that the area of the land in question was 4 drones, 7 kanis, and 19 gundas only.
4. Both the learned Judges of the Division Bench appear to have considered, that the issue thus raised was immaterial for the purposes of that suit, because whichever way it was decided, the plaintiffs would have been entitled to the rent which they claimed.
5. But 1 confess 1 am unable to adopt that view. It seems to me that it was a very material question in that case, and certainly it was one to which the parties themselves attached great importance, whether the rent, which the then defendants admitted to be due, was payable in respect of the larger or the smaller area.
6. The then plaintiff advisedly claimed it in his plaint as payable for the smaller area only. The defendants as distinctly alleged, that it was due in respect of the larger area. The issue raised upon these counter-statements was in fact the only question in the cause, and I cannot doubt that if the defendants had so pleased, they might have made the decision upon that issue, the subject of appeal. But they did not choose to take that course They accepted the adverse judgment of the Court without appealing from it; and now the question arises in the present case, whether that judgment is not conclusive? I am of opinion that it is.
7. This suit is confessedly brought for the express purpose of raising again the very same question that was raised and decided against the present plaintiffs in the former suit; and it would appear that the occasion which has given rise to this suit is that the present defendant is seeking to charge the plaintiff's with additional rent for the excess quantity of land which they held over and above the 4 drones, 7 kanis, and 19 gundas.
8. The plaintiffs, therefore, to relieve themselves of this threatened, obligation, are asking the Court for a declaration directly at variance with what was decided in the former suit. 1 consider that they cannot do this, and that the decision in the former suit is conclusive between the parties, and as my learned colleagues agree with me, the result is, that the special appeal will be allowed, and the plaintiffs' suit dismissed with costs in all the Courts.
9. I am of the same opinion. Mr. Justice Mitter observes that the question relating to the area of this taluk was wholly foreign to the matter in dispute, Now the matter in dispute was that upon which the parties were at issue, and the only point on which the parties were in issue was as to what was the area of the holding. The defendants then, the now plaintiffs, might have avoided any finding upon that point, and might have desired the Court to abstain from coming to such a finding. They chose, however, to raise it, and it was material they should raise it, as otherwise they might be bound in after proceedings by the finding that they were to pay Rs. 105 for 4 drones.
10. Now the plaintiffs evidently had a consciousness that they would be so bound, and therefore they did not wait for what they knew was to come after, that is to say, the claim of the landlord to enhance in inspect of the remaining 4 drones, but they imagined they could forestall him by bringing a suit for a declaration. It was under the impression that findings of a Court in rent suits could be questioned in the Civil Courts that proceedings of this sort commonly originated, but that view has been dissipated by the decision of the Full Bench.
11. I think, therefore, that the present plaintiffs are bound by the decision which they invoked, and with which they rested content by not disputing he by a regular appeal.
12. I concur.