B.K. Mukherjea, J.
1. This is an appeal on behalf of the plaintiffs and it arises out of a suit for arrears of rent due in respect of taluk which is alleged to be held by the defendants as tenants under the plaintiffs. The rent is claimed for the years 1335-38 B.S. at the rate of Rs. 281-15-6 per year. The whole controversy centres round a very short point as to whether the plaintiffs represent the 16 annas interest in Touji No. 194 under which the taluk is admittedly held. The trial Court decided this point in favour of the plaintiffs and decided the suit. On appeal the lower Appellate Court held that some of the cosharers were left out and consequently the suit was not maintainable. To understand the point in controversy it is necessary to state the material, facts briefly. Touji No. 194 admittedly belonged to three persons, viz. Basirulla, Asanulla and Fazlur Rahman in equal shares. Plaintiff 1 who is the son of Basirulla claims to represent his 1/3rd share in the touji. Asanulla's interest is admittedly held by plaintiff 2 and there is no dispute on this point. The remaining 1/3rd share of Fazlur Rahman is alleged by the plaintiffs to have passed over to plaintiffs 3 to 5 by certain transfers. This is how the plaintiffs claim to represent the entire 16 annas share of Touji No. 194.
2. Defendant 1 who is the only contesting defendant raised a twofold defence in answer to the plaintiffs' claim. His first contention was that the 1/3rd share of Basarulla belonged not to plaintiff 1 but to his wife Ashrafannessa in whose name it was recorded in the settlement records and after the death of Ashrafannessa it vested in her two sons and three daughters. As none of these heirs of Ashrafannessa were made parties to this suit the other plaintiffs were not entitled to any relief. The second contention raised was that the entire interest of Fazlur Rahman did not vest in the plaintiffs but that a 6 pies share, taking the interest of Fazlur Rahman to be 16 annas, was purchased by defendant 1 by a kobala dated 24th Chaitra 1336 B.S. The trial Court, as I have stated above, negatived both these defences and decreed the plaintiffs' suit in its entirety. The lower Appellate Court on the other hand accepted the defence version as correct and on that ground dismissed the plaintiffs' suit. Mr. Das who appears for the appellants has challenged the propriety of the lower Appellate Court's decision on both these grounds.
3. Now, so far as the first point is concerned, I am of the opinion that the decision of the lower Appellate Court cannot be supported. There is no dispute that the 1/3rd share in the touji belonged to Basirulla and plaintiff 1 is his son and heir. It is true that in the Record of Eights the name of his wife Ashrafannessa was recorded as a proprietor to the extent of 1/3rd share and on the basis of that entry there was a rent suit started in which she figured as a plaintiff along with her co-sharers. There was a decree obtained in that rent suit which is marked Ex. D in this case. There was however a later decree in a suit which was instituted by plaintiff 1 along with the other owners and that too culminated in an ex parte decree against the present defendants. The lower Appellate Court was of the opinion that preference should be given to the first decree over the second and as it has not been established by any evidence that there was any fraud which vitiated the first decree it must be taken to be conclusive between the parties. I think that the learned District Judge looked at the thing from a wrong standpoint altogether. A decision in a rent suit whether it is ex parte or contested is conclusive on one question and one question only, namely, as to the existence of the relationship of landlord and tenant between the parties for the 'period in suit. It has a value undoubtedly under the provisions of Section 114, Evidence Act, and under illustration (d) of that Section it is open to a Court to presume that the relationship which was determined in the rent suit continued after that.
4. In the present case the subsequent decree even though it was an ex parte one did certainly rebut the presumption which the Court would be otherwise entitled to draw under Section 114, Evidence Act, and unless there is something to the contrary proved by the defendants it would be a proper thing to presume that the relationship of landlord and tenant as between plaintiff 1 on the one hand and the defendant on the other still continues. Apart from that the Record of Eights cannot certainly be regarded as an evidence of title and as Asrafannessa could not be an heir of Basirulla nor is there any case of her having obtained the property by any deed of transfer the entries would prima facie be baseless. Under these circumstances I am of the opinion that the lower Appellate Court was wrong in dismissing the suit on the ground that a 1/3rd share of the touji did not belong to plaintiff 1 but belonged to his wife and after the death of the latter went to her heirs.
5. On the second point I think the finding arrived at by the lower Appellate Court cannot be upset in second appeal. No doubt the matter is somewhat intricate but on the whole we think that the lower Appellate Court has come to the right decision. It is not disputed that 1/3rd share of Fazlur Rahman devolved upon his three sons and his widow and after a deed of nadabi was executed by one of the sons, viz. Moazem Hossain Chaudhury, the other two brothers acquired a 14 annas share in the interest of Fazlur Rahman, the remaining 2 annas share belonging to the widow Aktarennessa. This 14 annas interest plaintiffs 3 and 4 undoubtedly have acquired by Exs. 3 and 10. The only interest that was outstanding was the 2 annas share belonging to the widow Akhtarennessa. It is admitted that she executed a deed of wakf with regard to 1 anna 6 pies share and the remaining 6 pies share she made a gift of in favour of her son Abduz Mazafar Ahmed Chaudhury. Defendant 1 has purchased this 6 pies share from Abduz Mazafar Ahmed Chaudhury by a kobala, Ex. B, dated 24th Chaitra 1336 B. Section We are unable to hold that this share was already included in Ex. 3 which was the kobala executed by Abduz Mazafar Ahmed Chaudhury in favour of plaintiffs 3 and 4.
6. In these circumstances the conclusion is that the plaintiffs represent the entire 16 annas share in the touji minus 6 pies share in the interest of Fazlur Rahman, which would amount to 2 pies share in the whole touji. It is not disputed that as defendant 1 is a party to the rent suit the plaintiffs are entitled to have a decree for the fifteen annas ten pies share which they have in them. The appeal is therefore allowed, the decree of the lower Appellate Court is set aside and in lieu thereof it is ordered that the plaintiffs will be entitled to a decree for 15 annas 10 pies share of the rente claimed. The plaintiffs are entitled to their costs of this appeal, hearing fee being assessed at two gold mohurs. As regards the costs of the lower Courts we order that the plaintiffs are entitled to their costs in proportion to their success.
7. I agree.