1. This appeal arises out of a judgment and decree of the Subordinate Judge, Second Court, Faridpur, confirming the decree of the Munsif of the First Court, Madari-pur, in a suit for rent, namely Suit No. 69 of 1939 brought by the 10 annas proprietors in a superior interest. At the same time there was a claim by the 6 annas proprietors in Rent Suit No. 1783 of 1938 which was tried along with the suit out of which the present appeal arises. The plaintiff's claim was that the rental in his share was Rs. 18-9-6, while the tenant defendants alleged that the rental was Rs. 14-7-6 in 16 annas share. The C.S. Kantians published in 1914 support the defendants' case and show the lower rate both for the 6 annas proprietors and also for the tenant proprietors. The plaintiff relies upon an ex prate decree in Rent Suit No. 1343 of 1934, wherein he was made co-plaintiff in a suit brought originally by the 6 annas proprietors and the decree was given in his favour at the higher rate now claimed by him. In the same suit a decree was given in favour of the 6 annas proprietors at the lower rate, that is to say, the original rate shown in the record of rights and still claimed by them in their present suit, namely Rent Suit NO. 1783 of 1938. Both the trial and the appellate Courts appear to have proceeded upon the assumption that the decree in Rent Suit No. 1343 of 1934 was executed; but it has been brought out in the course of this appeal that the extract from the suit register, Ex. 2, shows that in fact what was executed was only that portion of the decree relating to the claim of the 6 annas proprietors and that the claim of the present plaintiff for the higher rate amounting in all to Rs. 63-13-6 was not executed. The lower appellate Court, relying on two eases one of which has been given a defective reference of and is untraced and the other case in Maheswari Deiv. Gaurhari Maity (26) 13 A.I.R. 1926 Cal. has held
an ex prate decree in a previous rent suit, though not strictly operating as res judicata; raises the presumption of Section 51, Ben. Ten Act, and entitles the plaintiff to claim rent at the rate decreed in the previous suit, unless the defendant can show that the previous decree was obtained by fraud or by any irregularity or that the rate of rent has been changed or varied since then.
2. On behalf of the appellant, it is now con-tended that as it has been shown that the ex parte decree in the suit of 1934 has not been executed so far as it relates to the claim of the 10 annas proprietors, the decree is no evidence in the present suit as to the rate of rent and for this reference is made to the case in Ram Chandra Dutt v. Haro Gobinda Bhattacharjee. 1 C. W. N. cxxviii. On behalf of the respondent it is urged that the decision in the previous suit should operate as res judicata. In my opinion, neither of these contentions is sound. There has been some difference of opinion on the question as to whether a decree in a previous rent suit operates as res judicata on the question of the rate of rent or not; but I think that the decision of Full Court in Modhusudan Shaha Mundul v. Brae (89) 16 Cal. 300 (F. B.) has settled that such a decree will not operate as res judicata, even though there is a statement of the alleged rate of rent in the plaint, or a recital in the decree of the rate of rent alleged by the plaintiff, unless it can be shown that a declaration had been asked for in the plaint as part of the substantive relief claimed that the rate was at a specific figure. As I understand that decision although it held in the circumstances stated that the previous decision would not operate as res judicata, it did not hold that the previous decision would not be evidence.
3. In the present case, nothing has been shown to bring it within the required category as laid down in the decision of the Full Court so as to make this case one in which the previous decision would operate as res judicata. The plaint itself has not been proved in the case. All we have is the extract of an entry in the register of suit showing the nature of the claim and the decree. The decision of the Full Court in Modhusudan Shaha Mundul v. Brae (89) 16 Cal. 300 (F. B.) has been discussed and to some extent criticised in the case cited by the lower appellate Court, namely the case in Maheswari Dei v. Gaurhari Maity (26) 13 A.I.R. 1926 Cal But still it was held there that the previous decree in the circumstances therein stated would be evidence of the rate of rent. The trial Court in this case has proceeded on this basis, but the lower appellate Court has proceeded on the basis that the previous decree was no evidence at all as to the rate of rent. The value to be attached to the decree as evidence will however, vary with the circumstances of the particular case. The lower appellate Court does not appear to me to have considered the evidence as a whole but treated the matter as practically decided on the basis of the case cited by it, namely the case in Maheswari Dei v. Gaurhari Maity (26) 13 A.I.R. 1926 Cal. and in so proceeding, in my opinion, had committed an error.
4. So far as it concerns the point taken by the appellant, I have examined the authorities referred to by Rampini J. in Ram Chandra Dutt v. Haro Gobinda Bhattacharjee 1 C. W. N. CXXVIII, namely the cases in Modhusudan Shaha Mundul v. Brae (89) 16 Cal. 300 ('93) 20 Cal. 505, Bakshi v. Niramuddin ('93) 20 cal. 505 and ('97) 1 C. W. N. 120, Madhu Munjari Chowdhu-rani v. Jhumar Bibi. But I can find no support therein for the proposition that an ex parte decree, which has never been executed, is no evidence as to the rate of rent. The first case referred to is the Full Court case already discussed above and it is certainly no authority for any such proposition. The other two are cases where in fact the decrees had been executed and the question as to the value as evidence of a decree, which had not been executed, could not have been and was not considered therein. All that can be said is that in the head note of the case in Madhu Munjari Chowdhu-rani v. Jhumar Bibi. it is expressed that the previous decree in a rent suit which has been executed is 'some evidence as to the rate of rent'-a niggardly expression of the value of such a decree not justified by the actual decision of the case as I read it, but from it, it might be deduced, if the decision were not examined, that it has been an authority to say that such a previous decision is of small value where the decree has been executed and if of no value where the decree had not been executed. The decision cited does not justify any such view, nor does the case in Bakshi v. Niramuddin, which the later case in 1 C. W. N. 120 Purports to follow.
5. The two other cases that have been referred to in the arguments in the appeal are (i) the ease in Mati Lal Poddar v. Nripen dra Nath Ray. another decision by Rampini J. which relies on Madhu Munjari Chowdhu-rani v. Jhumar Bibi for the decision that an ex parte decree which has been executed is some evidence as to the rate of rent, and (ii) a brief note to the case in ('06) 2 C. L. J. 98n, Atarannessa Bibi Y. Golabdi, which also follows the above two cases in holding that an ex parte decree for rent which has been executed is good evidence so long as it stands unreversed. It may further be noted that it appears from the report that the decrees considered in the Full Court case referred to above had not been executed. The question 'whether an ex parte decree operates so as to render any question decided res judicata in the absence of proof that the decree had been executed' was not decided in the Full Court case; it was not necessary to do so, because the Court held in the particular case that it had not been shown that the previous decree operated as res judicata. In my opinion, a previous decree in a rent suit, even though it has not been executed, has value as evidence as to the rate of rent in the same way as such a decree, if executed would have value although the fact that the decree has not been executed will be one of the circumstances to be taken into consideration along with other facts of the case in determining the value to be given to such a previous decree as evidence to establish the rate of rent.
6. As regards Section 51, Bengal Tenancy Act, my view is that this section operates to throw the onus of proof of any change in the rate of rent on him who asserts it, when once it has been established that previously a given certain rate was in existence; this would be equally true whether or not the rate be established by the use of a previous decree as rendering the matter res judicata, or by using such decree as a piece of evidence to be considered in determining the fact.
7. In my opinion, therefore, it will be necessary to remand the present case for a proper determination of the fact by the lower appellate Court after giving due consideration to all the circumstances including the entry in the record of rights in 1914, the ex parte decree and the fact that the ex parte decree has been executed in part as to the 6 annas share of rent at the lower rate and has not been executed in part as to the 10 annas share and any other circumstances placed before it by the parties.
8. Some reference has been made before this Court as to the effect of Section's 29 and 30, Bengal Tenancy Act. These are considerations in determining the question of fact as to what is the rate of rent and to the value of the decree in the suit of 1934 as showing what that rate were. It has been urged that the decretal rate is so high compared With that shown in the record of rights that it must be wrong as offending against Section's 29 and 30, Bengal Tenancy Act, in the absence of anything to show justification for the enhanced rate. But the argument in this form may beg the question, because it may be held that that decretal rate is correct because such a rate had been in existence from before and in fact it is the record of rights which is wrong. It is for the appellate Court in going into the question of fact to consider the whole matter in all its aspects and to make its own conclusion of fact as to what has been shown by the evidence before it to be the rate in the 10 annas share of the plaintiff appellant. Both sides will be at liberty to adduce evidence.
9. The result is that this appeal is allowed; the decree of the lower appellate Court is set aside and the case is remanded for disposal by that Court in the light of the above remarks. There will be no Order as to costs in this Court.