1. The question raised in this appeal by the plaintiffs in the suit out of which it has arisen, is whether the decision in a previous suit instituted by the plaintiffs, in the year 1925, for enhancement of rent under Section 30(b), Ben. Ten. Act, operated as a bar to the question whether the provisions of the Transfer of Property Act were applicable to the tenancy in suit, being agitated in the present litigation. In the previous suit of the year 1925, on the objection raised by the defendants, it was decided that the tenancy in question was not for agricultural purposes, and the provision of the Bengal Tenancy Act could not therefore apply. The claim for enhancement of rent made in the suit was defeated on the aforesaid decision given by the Munsif in that suit, on 11th November 1925. But for the reason given by the Munsif that the provision of the Bengal Tenancy Act had no application, the decision dismissing the claim for enhancement of rent was not sustainable; no other ground having been given by the Munsif trying the suit, and no other ground having been raised by the defendants in suit for the purpose of resisting the claim for enhancement of rent, made in the year 1925.
2. In the above view of the case before us, we are unable to agree with the conclusion arrived at by our learned brother Henderson, J., that the plea of res judicata as raised in the case before us, was not sustainable. The foundation of the decision in the previous litigation between the parties to the suit giving rise to this appeal, was that the provisions of the Bengal Tenancy Act were not applicable to the case before the Court; and, in our judgment, the question whether the Transfer of Property Act or the Bengal Tenancy Act was applicable to the present case, as raised in issue 5 in the suit, could not be allowed to be reagitated. In the above view of the case before us, the decision of our learned brother Henderson, J., in second appeal, and the decision of the Subordinate Judge in the lower appellate Court, are set aside and the decision and decree passed by the trial Court, on 17th August 1929, declaring the title of the plaintiffs-appellants, to the lands in suit, and entitling them to recover possession by evicting the defendant-respondents and by removing their houses standing on the lands are restored. The defendants-respondents will carry out the terms of the aforesaid decree within three months from this date. The plaintiffs-appellants are to get their costs in the litigation throughout, including the costs in this Court, from the defendants-respondents.