1. This second appeal arises out of a suit brought by the plaintiffs under the following circumstances:--The defendant holds a putni under the plaintiffs, who sue him for arrears of rent upon the basis of a kabulyat, at the rate of Rs. 190-6-6 including Iswar Bhawanipur's mamuli, Rs. 3-7-6, and claim payment by ten instalments. The defendant alleges that the kabulyat is not binding upon him, and pleads that the mamuli included in the claim as rent is an illegal cess. It appears that previously there was another suit between the parties in which the plaintiffs had claimed rent and had obtained a decree for Rs. 190-6-6 payable in four instalments. In that suit the kabulyat was declared to be not binding on the defendant.
2. The Munsif in the present case held that the question relating to the kabulyat and the instalments was res judicata, and overruling the objection of the defendant that the mamuli was an illegal abwab, made a decree in favour of the plaintiffs for Rs. 190-6-6 payable by four instalments as decreed in the previous litigation. He held further that it had already been found that the kabulyat was not binding on the defendant, and that the plaintiffs were estopped from reopening the question. He held also that, as the defendants had not objected in the former suit to any portion of the rent being an illegal cess, he was barred from raising that plea in the present action.
3. Both parties appealed and the District Judge dismissed the defendant's appeal as well as the cross-appeal of the plaintiffs, and affirmed the judgment and decree of the First Court.
4. The defendants prefer this second appeal on the ground that the decision of the Lower Appellate Court regarding the illegal cess is erroneous, because no issue was raised on that point nor any decision arrived at in the first suit; and that even if any decision had been arrived at, it would not preclude him from raising the question again in the present suit. The respondents object to the decision of the Lower Appellate Court on the ground that that Court was wrong in holding the kabulyat was not binding on the defendant.
5. As regards the cross-objection we may dispose of it in a few words. We have read the judgments in the previous suit, and we find that the question relating to the binding nature of the kabulyat, and the number of kists was distinctly raised on that occasion and was decided in favour of the defendant. The plaintiffs are not in a position to reopen that question of fact.
6. As regards the contention of the defendant, it is admitted that in the previous suit there was no question raised or decided concerning the defendant's non-liability for any portion of the rent on the ground of its being an illegal abwab. The written statement in that case is not before us, nor do we know exactly the frame of the former suit, and it is, therefore, difficult for us to say whether the defendant was or was not bound to put forward in that suit his allegation about the illegal abwab. In the present case, however, the plaintiffs sue distinctly for rent on the ground that the defendant is liable to pay at the rate of Rs. 190-6-6 which, according to their own statements, includes Iswar Bhawanipur's mamuli Rs. 3-7-6. Section 74 of the Bengal Tenancy Act provides: 'All impositions upon tenants under the denominations of abwab, mahtut, or other like appellations, in addition to the actual rent, shall be illegal, and all stipulations and reservations for the payment of such shall be void.' It has been pointed out in the case of Radha Prasad Singh v. Bal Kowar Koeri (1890) I.L.R. 17 Cal. 726 that if any portion of the sum claimed from the tenants is an illegal cess which has never been consolidated with the rent, it is not recoverable even if it has been decreed at any previous stage by a judicial decision. The learned Judge in the Court below has referred to explanation II of Section 13 of the Civil Procedure Code, for the purpose of showing that inasmuch as the defendant could have in the previous litigation raised this very plea and did not do so, the question must be regarded as settled between the parties. The decision, however, in Kailash Mondal v. Baroda Sundari Dasi (1897) I.L.R. 24 Cal. 711 shows that, although upon a literal interpretation of the words of explanation II Section 13 of the Civil Procedure Code, it might be contended that a point not raised and not decided in a previous litigation might still be taken as conclusive in a subsequent suit between the parties, yet upon a proper construction of the section the question ought not and cannot be treated as res judicata unless there is a judicial determination express or implied on the matter not put directly in issue. Mr. Justice Banerjee's words are very clear on the subject. He says: 'Granting that the matter now in issue might and ought to have been made a ground of defence in the former suit, the question still remains whether it 'has been heard and finally decided' by the Court within the meaning of Section 13. All that explanation II says is that 'any matter which might and ought to have been made ground of defence or attack in such former suit shall he deemed to have been a matter directly and substantially in issue in such suit,' but it does not go on to say, 'and it shall be deemed to have been heard and finally decided' notwithstanding that the question was never considered by the Court, and notwithstanding that the subject, matter of the subsequent suit is different from that of the former suit. It is only when the subject-matter of the two suits is the same that the matter can be said to have been heard and finally decided within the meaning of Section 13 of the Code, even though the matter was never raised in issue, but it is very difficult to hold that a matter which was never raised in issue actually in the former suit and which is raised in defence in a subsequent suit in which the subject-matter is different from that of the former suit, shall, nevertheless, by virtue of explanation II of Section 13, be deemed to have been not only matter directly and substantially in issue, but matter which has been heard and finally decided.' It is with reference to the latter observation of Mr. Justice Banerjee that we mentioned at the outset that in the case before us we do not know what the nature of the former suit was, as the pleadings are not before us.
7. But, apart from that case, it is argued before us that in a suit brought merely for rent, if the defendant does not raise any plea as to any portion of the rent claimed being an illegal abwab, it precludes him from raising the question afterwards. 'We are aware of no authority in support of this contention excepting the bare words of explanation II of Section 13, which in our opinion do not bear it out.
8. As regards the cases cited by the learned pleader for the respondents, they only go to show what an illegal abwab is and what is not. In our opinion this matter requires to be dealt with upon the facts.
9. We think that the case must go back to the District Judge to find on the evidence before him, whether the sum which is claimed by the plaintiffs as included in the rent of this putni taluk as Iswar Bhawanipur's mamuli, Rs. 3-7-6 is an illegal cess or rent. We accordingly set aside the judgment of the learned District Judge and send the case back to be tried in view of the observations we have made. If he finds that the sum claimed as Iswar Bhawanipur's mamuli is an illegal cess, then it will follow that it cannot be recovered. If it is not an illegal cess, the judgment of the Lower Court will be upheld.
10. The costs of this appeal will abide the result.
11. The cross-objections are disallowed without costs.