1. The plaintiff-respondent brought a suit for recovery of arrears of rent, at the annual rate of Rs. 103-6-0, for the years 1344-1347 B.S. in respect of certain dags recorded in khatians 2, 3, 4, 5, 26, 27 and 34, the allegation being that this consolidated joma had come into existence, with the consent of the tenant, in the year 1336. There was a previous rent suit for the years 1338 and 1339, in respect of these khatians and dags and it was decreed ex parte, the amount having, according to plaintiff, been recovered in execution. The defence was that there was one joma for the dags of khatian 27 and another for those of khatian 34; that the suit lands in khatians 26 and khatians 2-5 (being khas khatians of the original landlords) were in the occupation of the appellant who admitted the relationship of landlord and tenant in respect of all the suit lands, but made a case that the land held by him in these latter khatians (2-5 and 26) remained unassessed to rent; the story of consolidation was thus denied.
2. On these facts, the parties went to trial on two main issues in the Court of the Munsif of Naogaon who decided both of them against the plaintiff-respondent. The Munsif held (a) that the previous rent decree did not operate as res judicata with regard to the annual rate of rent, based on the story of consolidation and (b) that in any case the plaintiff had failed to prove the story of consolidation by the testimony of the solitary witness examined. The finding amounted to this, that this witness was not in a position to depose to certain material facts for reasons which will be considered later and that therefore the collection papers put in were not relevant to corroborate the story of consolidation and payment of rent thereafter. Against the dismissal of the suit the landlord carried an appeal which was heard and allowed by the Subordinate Judge of Rajshahi who held (a) that the decision in the previous rent suit operated as res judicata and (b) that there was evidence, oral and documentary, in proof of the story of consolidation and payment at the consolidated rate.
3. The same two points arise for consideration in this second appeal by the tenant defendant who is a Marwari. Decision (a) res judicata. The plaint of the previous rent suit (No. 1983 of 1933) is Ex. 6 and the decree is Ex. 7. Exhibit 6 shows that, that suit was brought for recovery of arrears of rent at one annual joma of Rs. 103-6-0, in respect of two plots in khatian 26, seven in khatian 27, two in khatian 34 and part of one dag numbered 306 and comprising 2.89 of land recorded in khas khatians. The total area of the plots in all the khatians is shown as 37.88. There was a claim for annual cess and for compensation. The figures for each item of claim are separately given and the total stood at Rs. 266-8-5 g. It was filed on 18th April 1933 (evidently the tamadi day) and decreed ex parte on 15th September following. It being a decree drawn up under the Tenancy Act, the lands of the plaint are not reproduced in the decree, but there can be no question that the full amount of rent, cess, compensation, and future interest was granted in respect of the suit lands described in the plaint of this rent suit. The present plaint as originally drafted, in printed form and filed on 15-4-1941 was in respect of the same two plots in khatian 26, the same seven plots in khatian 27 and the same two plots in khatian 34. The fractional dag comprising 2.89 acres in the khas khatian (s) was added by an amending petition made part of the plaint on 6-12-1941. Those khas khatians are shown as numbered 2, 3, 4 and 5. The total area before amendment stood at 34-99 and after amendment at 37-88 as in the previous suit. Apart from a wasil of Rs. 3 for 1344, the total claim for each year is identical with that of the two years of the earlier suit, viz., rent: Rs. 103-6-0; cess: Rs. 3-3-5g. and compensation of Ks. 52-7-0 at 12 per cent.
4. I have recited these details at some length because an examination of the 3 cases cited before me reveals that ultimately the position in law is that in each case, the plaint and decree in the previous suit being admissible, it has to be seen what was in issue and decided in that suit. In some cases, on such comparison, it may be found that the documents of the earlier suit between the same parties for the same tenancy may simply be a piece of admissible evidence to be given greater or lesser weight according to circumstances; in of her cases, it may be found that the earlier decision is binding and conclusive creating an estoppel as a matter of evidence and making the plea of res judicata applicable as a matter of procedure. The cases which call for attention are these: Modhu Sudan Shaha v. Brae ('89) 16 cal. 300 (F.B.), a Full Bench or rather Full Court decision; Sarojini Debya v. Lakhi Priya Guha : AIR1925Cal427 and Maheswari Dei v. Gaurhati Maity ('26) 13 A.I.R. 1926 Cal. 767. The first is of the year 1889, the second of 1924 and the third of 1925. That a previous decree inter partes operates as res judicata in respect of the relationship of landlord and tenant is well settled and does not arise here where the relationship is admitted in respect of all the land of both suits. (I omit mention of the ease referred to by Mr. Janah for the appellant in Vishnu v. Ramling ('02) 26 Bom. 25, as I do not find it of any assistance).
5. Before the decision of the Full Court in 1889, there had Been a decision of the Full Beach which had declared that decree in a previous rent; suit inter partes was admissible in evidence and would be binding only as to the question or 1 questions which it really decided in passing the decree. Nevertheless, the controversy broke out again and led to the Pull Court decision of 1889. Both the later decisions (of 1924 and 1925) have found it necessary to explain the Pull Court decision and there can be little doubt that, as it stands, on the bare answers returned to three of the four questions referred to it, the decision has presented no little difficulty. The tendency has been to restrict its application to the type of suit which gave rise to that reference. There were in fact two suits, and in each case an earlier decree was exhibited; those earlier decrees were passed by a Deputy Collector in 1861 and 1863 respectively. The later suits were before a Munsif. In one case, the Deputy Collector has passed an ex parte decree for Rs. 1-12-0 odd, and rate of rent alleged by the plaintiff being shown in the decree as Rs. 113-9-0 odd. In the other the decree had been for Rs. 10-7-0 odd against a rate of rent alleged by the plaintiff shown in the decree to be Rs. 43-15-0. Thus, in one case the amount decreed was about 1 per cent, and in the other about I of the figure alleged as the rate of rent, meaning the annual jama. The first two questions referred were (a) whether the decrees in respect of the rate of rent shown, were res judicata between the parties and (b) what was the effect of the recital in the decrees on that point in the absence of any decision upon it. In returning the answer to both the questions against the application of the doctrine of res judicata, the Full Court mainly relied on the fact that since in each case the plaintiff might well prove that the amount claimed was actually due as rent, though he failed to establish the rate named by him in the plaints embodied in the decree he might still be entitled to a full decree. That was because in both cases, the claim was for only a fraction (in one of the 2 cases an infinitesimal fraction) of the annual rate of rent (joma). Therefore in ('26) 13 A.I.R. 1926 Cal. 767 in which : AIR1925Cal427 was quoted with approval, the Pull Court decision was explained but did not have to be followed; the facts which were actually decided in making the earlier decrees were examined and on such examination, it was held that those ex parte decrees were binding and conclusive as to the rate of annual rent. Explanation 4 to Section 11, Civil P.C., was considered and their Lordships remarked that the earlier decrees could not have been passed for the amounts decreed, if the defendant had appeared and proved, as he sought to do in the later suits, that the rent payable each year was at the reduced rate alleged by him. The decision of 1924 on this point was to the same effect.
6. The position is thus seen to be this: (i) a previous ex parte rent decree is admissible as evidence of the rate of rent decreed by it ; (ii) it may in some cases be only a piece of evidence to which such value is to be attached as circumstances demand; (iii) it may in other cases be binding and conclusive if an examination of what was pleaded, proved and decided shows that one of the things pleaded, proved and decided was the rate of rent and (iv) that the Pull Court decision must be restricted to cases of the type which led to the reference on that occasion, viz., cases where a decree for the amount claimed could still be recovered, even if the rate of rent shown in the decree was not proved and decided. Applying these principles to the present case, I hold that the previous decree operates as res judicata. Mr. Janah complains that Expln. 8 to Section 11 is not satisfied; he means that consolidation (which itself in this ease involves a raising of the rate of rent per bigha for the entire holding was not alleged in the earlier suit, as it is not, and that therefore no question of the defendant appearing to deny it arose. But I find myself, after giving my best attention to the point, unable to accept the contention. The defence was and is that there were two separate jomas, each for the lands of one khatian and that the lands of the other khatian (26) and of the 4 khas khatians remain to this day unassessed to rent, so that there could be no question of consolidation. But, in the previous suit, this defendant, along with the summons, would have received the copy of a plaint like Ex. 6 which fixed him with the knowledge that his landlord was suing him for one joma of Rs. 103-6-0 per annum, together with a certain amount on account of annual cess and compensation at a certain rate, and that too, in respect of two plots in khatian 26, seven in khatian 27, two in khatian 34 and a certain area of land (2-89) in dag 306, recorded in a khas khatian of khatians. Apart from the fact that the word for consolidation ,is not used and that there is no reference to the occasion when such consolidation, with defendant's consent, took place, I cannot see what more was wanting to fasten the necessary knowledge on the defendant, who on receiving the copy of such a plaint was immediately apprised that instead of two rent suits being brought against him each for a separate joma in respect of one khatian apiece, he was being sued in one action for one entire joma in respect of 12 dags recorded, in 3 subsidiary and one or more khas khatians. It is here that the decision in : AIR1925Cal427 is of further assistance as noticed by the Subordinate Judge. That was a ease where an ex parte decree for a certain joma had been recovered jointly and severally against a number of tenants. In the later suit between the same parties, one set out of all the defendants appeared and raised the plea that the joma had been split up and that that set was only liable for a certain fraction of the total joma earlier decreed against the whole body of defendants. It was held that the existence of the earlier decree disentitled the contestants in the later suit to raise the plea of splitting up, because that plea was open to them to have raised within the meaning of Expln. 4 to Section 11, Civil P.C., in the previous suit. In the present case, by a parity of reasoning, I hold, by reference to what is recited in Exs. 6 and 7, that the necessary matter was alleged therein, that it was thus substantially in issue between the parties and that it was for the defendant on that occasion to appear and enter his present plea against consolidation of the present suit lands under one composite joma. In that view, Explns. 3 and 4 of Section 11 are satisfied, and the principle of the section applies. It was quite impossible for plaintiff to have recovered in one suit a decree for ns. 266-8-5 (made up of the. annual joma and cess and compensation as claimed, for the two years in claim) had the defendant appeared and succeeded in proving his present contention that there was no such consolidation with his knowledge and consent. Exhibit 8 is a copy of the suit register and it shows that the ex parte rent decree of 1933 was put into execution in case No. 617 filed on 24-3-1934 and that the decree was fully satisfied, otherwise than by deposit in Court, on 29-4-1935, i.e., almost exactly one year after its institution and not as the Munsif erroneously thought, a few days thereafter without issue of any process. There is no reason to suppose that a bogus execution case was started and allowed to remain pending for one year, ending up with a false plea of full satisfaction, simply so that in the event of the defendant choosing to default and having to be sued 6 years later, this evidence would be available to prove realization of the rent decreed, in the course of execution. I agree with the learned Subordinate Judge on this point and decide it against the appellant. The previous decree operates as res judicata and that is really sufficient for the decision of this appeal.
7. But I propose to record a finding on the other point, (b) and that decision goes in favour of the appellant. The one witness examined for the plaintiff filed certain collection papers marked (Exs. 1-5), some of them were admitted subject to objection. In my opinion, they were irrelevant under Section 34, Evidence Act, and therefore inadmissible. That section says that entries ) in books of accounts regularly kept in the course of business (this includes zemindari papers like Exs. 1-5, and one may assume that in this case they were regularly kept) are relevant but that they are not alone sufficient evidence to charge any person with liability. The Munsif gave three reasons for refusing to accept the direct evidence of P.W. 1. They were (a) that he was guilty of prevarication, as noted in the deposition and judgment; (b) that he was not the functionary whose duty it would be in a zamindari office to deal with matters like consolidation and payment of rent and (c) that at the material times; he cannot have been present at the particular katcherry, because he was employed in a different dihi and at one time in another District altogether, Bogra. The lower appellate Court saw the difficulty but without properly discussing the Munsif's judgment on the subject contented itself with remarking that the witness 'was able to say something.' That is not sufficient. The witness must give evidence which is both admissible in law and reliable in fact. Only then is he allowed to put in papers under Section 34. One point of view is that they are allowed in as corroboration of the oral testimony given on a question within the knowledge of the deponent; another is that they form an exception to the general rule about admissions and fall within one of the exceptions to Section 21, Evidence Act. The plaintiff could have produced the persons named in the evidence and in the judgments as competent witnesses to depose to the facts of which corroboration was sought in the collection papers, Exs. 1-5. In the absence of those competent witnesses, the papers could not be received in evidence and they should have been excluded. Without them (and apart from Exs. 6, 7 and 8) there is no evidence to prove that there was consolidation of the joma into a figure which involved a considerable increase in the rate per bigha of land within what were previously separate holdings. Had it not been therefore that I hold that the bar of res judicata operates, the appellant would have succeeded on this point.
8. The result is that the appeal has to be dismissed. In view of the fact that each party has been successful on one of the two questions which arose for determination here and as the question of res judicata is one which necessitated examination on second appeal, I direct that the parties shall pay their own costs in this Court. The appeal is thus dismissed without costs. Leave to appeal under Clause 15, Letters Patent is asked for and is granted.