Macpherson and Banerjee, JJ.
1. The facts are shortly these. In 1888 the plaintiff sued the defendant for his share of the rent of a tenure for the years 1291 (1884) to 1293 (1886) and part of 1294 (1887), alleging that the tenure contained 15 bighas 16 cottahs of land, and that the annual rent payable was Rs. 29-13. The defendant contended that he was not liable for the entire rent claimed, as a portion of the land comprised in the tenure was in the possession of the plaintiff himself. It does not appear that any issues were framed, or that there was any measurement of the land, but the first Court, after considering the evidence which the defendant adduced, rejected his contention on the general ground that he had failed to prove it. The defendant appealed, and his appeal was dismissed by the District Judge, who took the same view as the Munsif, and held that the burden of proof was on the defendant, and that he had failed to discharge it. The result was that the plaintiff obtained a decree for the rent of the years then in question at the rate of Rs. 29-13 per annum.
2. The present suit is for the plaintiff's share of the rent of the same tenure for the years 1294 to 1296 (1887 to 1889), the plaintiff's allegations as to the area of the land and the amount of the annual rent being the same as in the previous suit. The defendant's contention is also substantially the same, viz., that he obtained possession of only 8 bighas 12 cottahs of land, the annual rent of which would be Rs. 13-0-6. He further contended that the land was mis-described, and that some of the plots mentioned in the plaint did not exist. He does not, however, say that the rent has been altered in consequence of anything which has happened after the decision in the suit of 1888.
3. Both the Courts have held that the question of the amount of the annual rent payable by the defendant is res judicata, and the claim has been decreed in full without any consideration of the evidence which the defendant adduced in support of his contention or of the proceedings of the amin who was deputed to measure the land.
4. It is urged, and we think successfully, that the decisions are wrong, and that the Court ought to have determined on the evidence now adduced what the annual rent for the years in question is.
5. The decision in the suit of 1888 went no farther than this, that the defendant, upon whom the burden of proof lay, had failed to make good the plea he advanced, and the necessary consequence was that he failed to get the relief asked for, that is to say, a reduction of the rent for years for which the rent was then claimed. But the cause of action is in this case different, each year's rent being in itself a separate and entire cause of action, and the mere failure of the defendant to prove what he tried to prove in the previous suit would not, we think, prevent him from proving it in this. The case might have been different if the Court had in the previous suit definitely determined the area of the land in the defendant's possession and the annual rent payable for the same. It might then be said that the determination was general, and not limited to the particular years for which rent was claimed, and that the defendant could only succeed in the present suit by proving that the area and rent had since altered. The determination was not, however, of that character, and there is nothing in the judgment to indicate that the Court intended to decide anything more than it was strictly necessary to decide for the purpose of the suit, viz., the amount of money which the plaintiff was to recover for the years then in question.
6. The cases of Bussun Lall Shookul v. Chundee Dass I.L.R. 4 Cal. 686 and Nobo Doorga Dossee v. Foyzbux Chowdhry I.L.R. 1 Cal. 202 cited for the respondent are, we think, distinguishable. In the first of these the question raised as to the area of the tenure had been put in issue and definitely decided in a previous suit for the rent of the tenure. In the second, which was a suit for abatement of rent, it was held that the exact amount of abatement to which the plaintiff' was entitled had been raised and determined in a suit previously brought against her for the rent of the tenure, and that the determination was not merely for the year in respect of which the rent was claimed, but for all future years.
7. We cannot say that the questions which the defendant raises in this suit were heard and finally determined in the suit of 1888. It is still, we think, open to the defendant to prove by measurement that he is entitled to a reduction of rent under Section 52 (B) of the Tenancy Act, and if that question is open, it cannot be said that the area of his holding or tenure has been determined,
8. The case of Roghoonath Mundul v. Juggut Bundhoo Bose I.L.R. 7 Cal. 214 seems to us to be more in point than the cases cited on the other side and referred to above.
9. We would also notice that the decree leaves it undecided whether certain of the plots for which rent is now claimed are correctly described in the plaint and are the same as those for which rent was claimed in the suit of 1883. The defendant is clearly entitled to have this point decided in the present case.
10. We set aside the decrees of both the Courts. The case must go back to the Court of First Instance in order that all the other questions which arise may be disposed of.
11. The appellant will get his costs in this Court. The costs incurred in the lower Courts will abide the result.