1. This was a suit for rent brought by the plaintiff-appellant against his tenants on the allegation that he has 8 annas share in the jama. He impleaded in the suit defendants Nos. 4 and 5 his co-sharers who alleged that the plaintiff's share was only 7 annas in the jama. Both the Courts below have found against the plaintiff in respect of his share as well as in respect of the jama which he claimed to be Rs. 8 but which has been found to be Rs. 4.
2. The plaintiff appeals to this Court only with reference to the decision about his share in the property in suit. The Court of first instance relied chiefly on Exhibit (C) being the judgment in a suit between the parties in which the plaintiff's share was held to be 7 annas. The learned Munsif also referred to Exhibit 2 being the judgment in a suit between the parties relating to some other jama of the disputed tenure and held that that judgment was not admissible in evidence in this case inasmuch as the former suit related to a different jama. He, therefore, found that the Record of Rights which stood in favour of the defendants must be given effect to as the plaintiff had failed to adduce any evidence to rebut the presumption arising as to its correctness. On appeal, the learned District Judge has affirmed that decision, But we have not been able to follow the reasoning adopted by him. It appears that of the two judgments that were Glad in this case one by the plaintiff and the other by the defendants the Courts below have attached great importance to Exhibit (C) which in their opinion concludes this case. This judgment was passed in a suit in which the plaintiff's share was found to be 7 annas by a Munsif who, towards the end of his judgment, ordered the plaintiff in that case to pay deficit Court fee before the decree was drawn up and in default of plaintiff's payment the suit was to stand dismissed. This order was passed on the 7th of April 1914. The requisite Court fee not having been put in his successor-in-office passed the following order on the 26th May 1916: 'Deficit Court-fee not paid as directed by the Court's order dated 7th April 1914. The suit will accordingly stand dismissed. No decree need be drawn up'. This order virtually vacated the judgment is(sic) which should be treated as non-existing. Such a judgment, as has been held in the case of Irawa Laxmana Mugali v. Satyappashiddappa Mugali (1), should not be used as evidence in a subsequent suit.
3. With regard to Exhibit (2), the First Court observed that it referred to a different jama and, therefore, that Court refused to consider it. He was of opinion that the judgment in a suit relating to a different jama was not binding on the tenants-defendants. But we notice that the contending respondents defendants Nos. 4 and 5 were parties to that suit, and we cannot hold that that judgment cannot be used as evidence is this case. There are, of course, circumstances to be determined to make it operate as ret judicata between the contending parties. The lower Appellate Court has not come to any decision with regard to the admissibility of this piece of evidence. He has not accept-ed the reasoning of the learned Munsif in holding that judgment, Exhibit (2), is not binding upon the defendants. He does not consider the effect of that judgment as affecting the rights of the parties. It is difficult for us to say whether all the requirements have been proved in this case to make that judgment operate as res judicata in the present suit.
4. It is, therefore, necessary that the case should be remanded to the lower Appellate Court for the re-hearing of the appeal and for a decision whether judgment, Exhibit (2), operates as ret judicata between the parties and, if so, whether there is sufficient evidence on the record to rebut the presumption which arises under Section 103 B of the Bengal Tenancy Act.
5. We, therefore, set aside the decree of the lower Appellate Court and send the case back to that Court for a re-hearing of the appeal in the light of the observations above made.
6. Costs to abide the result.