1. This appeal arises out of a suit brought by the plaintiffs landlords for apportionment of rent. It appears that under these plaintiffs the defendants took settlement of some 24 1/4 bighas of land as cultivating raiyats. The lease then executed was one for 9 years from 1286 to 1294. But though the lease expired in 1294, the tenancy of the defendants has since continued. In the year 1906 the landlords brought a suit against the defendants for arrears of rent for the period 1309 to 1312. In that suit the tenant defendants contended that inasmuch as their, landlords had wrongfully dispossessed them of a substantial portion of their holding, namely, plots Nos. 4 and 5 measuring 51/4 bighas, the landlords were not entitled to any portion of the rent until such time as he replaced the tenants in possession of the two plots referred to. In that suit it was decided that the plaintiff-landlords had, in the year 1309, in collusion with a subsequent lessee of the name of Samiraddi, wrongfully dispossessed the defendants from plots Nos. 4 and 5. It was also decided that the story of exchange and of subsequent arrangement setup by the plaintiffs was false and that as a matter of fact the defendants up to the time of the suit had continued to be, and at the time of the suit were, tenants under the landlords in respect of lands measuring 24 1/4 bighas bearing a rental of Rs. 49. These points were directly and substantially in issue is the rent suit and the decision thereupon arrived at, therefore, operates as res judicata in the present suit which is, as we have said, one for apportionment of rent on the portion of the holding still remaining in the tenant defendants possession.
2. In the Court of first instance the plaintiffs' suit was dismissed. In the Court of first appeal the Subordinate Judge held that though the defendants had after the expiration of their written lease in 1294 continued to hold over, yet the element of consent, which was necessary to constitute a legal holding over, was wanting. In that view he held that the plaintiffs were entitled to an apportionment of rent.
3. We are unable to understand how he arrived at the conclusion that the element of consent was wanting. That there was a legal holding over and that the tenancy subsisted was a question decided in the rent suit brought in 1906, and, moreover, that rent suit, and the present suit also pro ceeded on this basis that the rent had been paid and accepted up to, at least, the year 1307. No more cogent evidence of consent can be given than that implied in the acceptance of rent. It follows that on the principles laid down in a long series of oases of this Court of which the decisions reported as Dhunput Singh v. Mahomed Kazim Ispahain 24 C. 296 : 12 Ind. Dec. (N.S.) 864 Rasseswari Chowdhurani v. Sourendra Mohuri 5 Ind. Cas. 105 : 11 C.L.J. 601, Chandra Kanta Dass v. Ramanath Barman 6 Ind. Cas. 478 : 11 C.L.J. 591, Sarip Jan Bibi v. Aftab-ud-din 8 Ind. Cas. 30 : 13 C.L.J. 115, Purna Chandra v. Rasik Chandra 9 Ind. Cas. 568 : 13 C.L.J. 119 and Ashutosh Dhar v. Joy Lal Sardar 18 Ind. Cas. 621 : 17 C.L.J. 50 are instances, it must be held that the plaintiffs, not having replaced their tenants in possession of the plots in question and not having taken any effective step to that end, are not entitled to any apportionment of rent on the lands still remaining in the tenants' possession. In support) of the Subordinate Judge's decision reference has been made to certain observations to be found in the decision reported as Rasseswari Chowdhurani v. Sourendra Mohun 5 Ind. Cas. 105 : 11 C.L.J. 601, wherein it is suggested that it is open to argument that where the dispossession is not by the 'landlord but by the lessee of the landlord, the landlord may still be entitled to apportionment. But this is not applicable in the present case, for here the finding is that the landlords themselves dispossessed the tenant defendants.
4. For these reasons this appeal is decreed the decree of the Subordinate Judge is set aside and that of the Court of first instance restored with costs in all Courts.