1. This is an appeal on behalf of the defendant in a suit for assessment of rent and for recovery of such rent for a certain period. In the Court of first instance the defendant pleaded that the land was rent-free. In answer, the plaintiffs contended that the question was res judicata. The Court of first instance held that the matter was not res judicata, inasmuch as although the question had been raised in a previous suit, between the parties and decided, the decision was not final within the meaning of Section 13 of the Code of Civil Procedure. The Court of first instance, therefore, went into the merits and found that the title of the plaintiffs to have rent assessed on the disputed land had been extinguished by adverse possession. In this view of the matter, the Munsif dismissed the suit. The plaintiffs then appealed to the District Judge, and it was contended on their behalf that the question of the character of the disputed land was res judicata. The learned District Judge gave effect to this contention and made a decree in favour of the plaintiffs.
2. The defendant has now appealed to this Court, and the only question which is raised in the memorandum of appeal is whether the question of the character of the disputed land is res judicata by reason of the decision in the previous suit for rent. In order to determine this question it is necessary to refer to the subject-matter of the previous litigation. It appears that in 1904 the plaintiffs brought a suit to recover Rs. 14-14-3 as arrears of rent with cesses and damages for the years 1309 to 1311. The allegation of the plaintiffs was that rent had been recovered at the rate claimed from the defendant for many years, but that from 1309 the defendant had refused to pay rent. The claim was contested on the ground that rent had never been paid in respect of the disputed land, and that as a matter of fact this land formed part and parcel of a holding of 20 bighas which was held by the defendant rent-free.
3. The Court of first instance considered the question whether the rent claimed land was rent-free land, and upon the evidence came to a conclusion adverse to the defendant. The Munsif also found that the rate at which rent was claimed was proved, and in this view of the matter made a decree in favour of the plaintiff. The defendant then appealed to the District Judge. The District Judge took additional evidence and came to the conclusion that the story of the plaintiffs that rent had been paid at the rate claimed was untrue and that as a matter of fact, rent had never been realized in respect of this land. He also held, however, upon the evidence that defendant had failed to prove that the land was as alleged by him, rent-free. He accordingly allowed the appeal and dismissed the suit, but he directed that a declaration should be inserted in the decree to the effect that the land was liable to be assessed with rent. Against this decree, no appeal appears to have been preferred by either party.
4. It is now argued on behalf of the plaintiffs that this decision operates as res judicata inasmuch as there was a declaration as to the character of the disputed land in the decree of the appellate Court. In our opinion this contention is not well-founded. It is clear that the declaration in question was beyond the scope of the previous suit. The previous Suit, as we have said, was not for declaration that the land was rent paying, nor was it for assessment of rent. It was a suit for rent of a particular year. No doubt the question whether the land was rent-paying or rent-free was incidentally in issue. If the Courts had found that the plaintiffs were entitled to recover rent and made a decree in their favour for some rent, it might have been Contended that the decision operated as res judicata so far as the character of the land was concerned. But the suit was dismissed inasmuch as the plaintiffs failed to prove that any rent was due as claimed by them. It was, therefore, unnecessary for the Court to consider whether the defendant had succeeded in establishing that the land was rent-free as alleged by him. The declaration in question was, therefore, not only beyond the scope of the suit as framed by the plaintiffs; the decision of the question was also unnecessary in view of the determination of the appellate Court that the plaintiffs had failed to show that any rent was due. Under these circumstances, it is impossible to say that the previous decision operates as res judicata. The view we take is supported by the decision of this Court in the case of Thakur Magundeo v. Thakur Mahadeo Singh 18 C. 647 in which this Court following the decision of their Lordships of the Judicial Committee in Run Bahadur Singh v. Lucho Koer 11 C. 301 (P.C.); 12 I.A. 23 came to the conclusion that the decision of the Full Bench in Niamut Khan v. Phadu Buldia 6 C. 319 had been overruled by implication.
5. The result, therefore, is that this appeal must be allowed and the decree of the District Judge set aside. As there has been no decision upon the merits, the case will go back to the lower appellate Court to be tried on the evidence on the record.
6. The costs of this appeal will abide the result.
7. Under Section 13 of the Court Fees Act, we direct that the amount of Court-fees paid by the appellant on the memorandum of appeal to this Court be refunded to him.