M C. Ghose J.
1. This is an appeal by the plaintiff zamindar in a suit for rent against the defendant patnidar in respect of certain resumed chowkidari chakran land. The only point at issue is what is the rate of rent payable by the defendant to the plaintiff. The patni was created in 1847. In 1899 the land of which the rent is now in dispute was resumed by Government as chowkidari chakran land and assessed to land revenue. Thereafter in 1905 the then patnidar Anath Bandhu Banerjee took settlement of the resumed land from the plaintiff agreeing to pay the revenue assessed by the Government and also a half of that amount as profit to the zamindar. The revenue assessed by the Government was Rs. 25-7-0. According to the kabuliyat of 1905 the plaintiff claimed that the defendant is liable to pay rent at the rate of Rs. 38-2-6. The defendant who purchased the patni in 1916 at an auction sale under Regn. 8 of 1819 pleaded that the greater part of the land which was resumed as chowkidari chakran land was really mal land of the patnidar and that on a correct view the land liable to resumption by Government would be found to be about 1/3rd of what was actually resumed and the Government revenue would accordingly be reduced. The defence has relied on the decree of a suit which was instituted in 1918 by the defendant patnidar against the Secretary of State, the plaintiff zamindar and certain other persons in which the claim was that of 34 bighas resumed by Government;about 24 bighas odd were mal lands of the patni and that the amount due to the Government for the chowkidari chakran lands would be only about Rs. 8. The trial Court found on a consideration of the evidence that the patnidar was liable to pay only Rs. 93-0 per annum as Government revenue on the resumed lands. As to the rent payable to the plaintiff zamindar it was agreed between the parties in the trial Court that the plaintiff would be entitled to get from the patnidar the amount due as Government revenue plus half of that sum as profit of the plaintiff. Against that decision, holding that the Government revenue on the resumed lands was Rs. 9-3-0 only, there was an appeal by the Secretary of State, and the District Judge Mr. Cammiade by his judgment dated 4th December 1922 allowed the appeal of the Secretary of State and held that the land revenue due was Rs. 25-7-0.
2. In second appeal this Court reversed the decree of the Court of appeal below and remanded the appeal for re-hearing. The appeal was re-heard by Mr. B.K. Basu, District Judge, who by his judgment dated 18th August 1928 allowed the appeal of the Secretary of State and held that the land revenue payable was Rs. 25-7-0. The zamindar did not appear in that appeal. The patnidar made a second appeal to the High Court. The Secretary of State alone defended the appeal. The zamindar did not appear. The High Court by judgment dated 16th December 1930 upheld the decree of the District Judge and dismissed the appeal as against the Secretary of State. The High Court however passed the following order:
The appeal in the lower appellate Court was made by the Secretary of State alone. The other defendants did not prefer any appeal before the District Judge and therefore they are not bound by the decree of the Subordinate Judge.
3. The Court of appeal below held that as the trial Court in the suit of 1918 found the amount of revenue payable to the Government was Rs. 9-3-0 the amout of rent payable by the plaintiff was Rs. 9-3-0 plus half of the amount, that is, Rs. 13-12-6 and that the plaintiff was not entitled to rent at the rate of Rs. 38-2-6 as claimed. It is urged on behalf of the plaintiff that the learned Subordinate Judge was in error in holding that the observation of the High Court in the judgment of 16th December 1930 is res judicata in this matter, that on a proper perusal of the judgment of the trial Court in the suit of 1918 it would be found that the matter is not res judicata, for the question of rent payable by the defendant to the plaintiff was not directly in issue in that suit. There it was agreed between the patnidar and the zamindar that the rent payable by the defendant patnidar to the plaintiff zamindar would be made up of two sums: first, the amount payable as revenue to the Government for the chowkidar chakran lands; and secondly 50 per cent of that sum as profit to the zamindar. The issue between the patnidar and the Secretary of State was as to the amount of land revenue. The trial Court decided that the land revenue payable to Government was Rs. 9-3-0. Thereupon the trial Court decided that the rent payable to the plaintiff zamindar was Rs. 9-3-0 plus half of Rs. 9-3-0=Rs. 13-12-6. The zamindar was content with that decree; it was the Secretary of State who appealed and on his appeal the land revenue payable was decided to be Rs. 25-7-0. Can the patnidar be allowed to plead that it does not matter that the Secretary of State has got it decreed that the land revenue payable is Rs. 25-7-0, that inasmuch as the zemindar did not join in that appeal, he is liable to pay only Rs. 13-12-6 per annum to the zamindar? I am clearly of opinion that such a plea of the patnidar cannot be accepted.
4. The agreement between him and the zamindar in the trial Court was that he would pay the zamindar the amount of land revenue plus half of that sum. According to that agreement as soon as the Secretary of State got the decree that he was entitled to Rs. 25-7-0 as land revenue, the patnidar became liable to the zamindar for Rs. 25-7-0 plus half of Rs. 25-7-0=Rs. 38-2-6. The observation of the High Court quoted above, cannot, in my opinion, operate to dissolve the agreement made by the patnidar with the zamindar. As between him and the zamindar there was in the suit of 1918 only one issue relevant to the matter now in dispute, viz., issue 9: 'Are the plaintiffs bound to pay any extra amount to defendant 7 for chowkidari chakran lands? If so, how much?' and the decision was by agreement of the parties. 'The issue that was highly contested was issue 8: 'if the 'Ga' lands of the plaint are mal lands what would be the assessment on the chowkidari chakran lands?' The amount of rent payable by the patnidar to the zamindar was not a matter directly and substantially in issue in that suit. The plaint in the suit contained amongst others the following prayers (cha):
That it be declared that the lands of Sch. Ga appertain to mal lands of Lot Harigram, and that they are not chakran lands, and that neither the Government nor the zamindar is entitled to receive anything from the plaintiff in respect of the said lands and that on account of the said lands the plaintiff was not liable to pay anything either to the choukidari fund or to the zamindar,
that it should be held that on account of the lands which are really chakran lands after excluding the lands of Sch. Ga the plaintiffs are only liable to pay Rs. 8-616 gandas to the choukidari fund and that in place of Rs. 25-7-0 fixed by Government the plaintiff is liable to pay Rs. 8-6-16 gandas only and that anything in excess thereof neither the Government nor the zamindar are entitled to claim or realize from the plaintiff.
5. The Secretary of State who was interested in the amount of land revenue contested the suit and made an appeal against the decree of the first Court. The zamindar was not directly interested in the amount of land revenue, for it was his business merely to collect it from the patnidar and pass it on to Government, getting a certain profit for doing the work. No doubt his profit varied according to the amount of the land revenue. In my opinion the question of the amount of land revenue was directly and substantially in issue between the patnidar and the Secretary of State; it was not directly and substantially in issue between the patnidar and the zamindar. The zamindar took up the position that he was entitled to get from the tenant the land revenue payable to Government plus 50 per cent of the same and to this position the defendant did not take any objection in the trial Court or the first appellate Court. I find that the suit is not barred by the principle of res judicata. It was also urged by Dr. Basak on behalf of the zamindar appellant, that the High Court judgment of 1930 is not evidence against him, on the ground that the zamindar was not properly made a party in that appeal. The zamindar, Maharaja Adhiraj of Burdwan, was summoned as a respondent by name, but long before the hearing of the second appeal his estate was taken charge of by the Court of Wards, and under Section 51, Court of Wards Act, 1879, the Manager of the Wards' property should have been summoned as next friend or guardian for the suit. The argument appears to be well founded. In the present case the defendant did not adduce any evidence to show how the rent admitted by him was arrived at. According to the kabuliyat of 1905 he is liable to pay to the plaintiff the amount of Government revenue Rs. 25-7-0 and half of it, that is, in all Rs. 38-2-6. The appeal is allowed with costs in all the Courts. Leave to prefer an appeal under the Letters Patent is allowed.
6. [On appeal under the Letters Patent their Lordships delivered the following]
7. The facts of the case giving rise to this appeal have been stated in detail in the judgment of our learned brother, M.C. Ghose, against which this appeal is directed. The only question for consideration in the appeal is whether the learned Judge is right in his conclusion that the suit out of which the appeal arose was not barred by the principle of res judicata. It was contended on behalf of the defendants-appellants that the judgment in Title Suit No. 30 of 1918 in the Court of the Subordinate Judge of Burdwan, dated 30th September 1920, operated as a bar to the question of rate of rent payble by the defendants to the Burdwan Raj Estate. This plea of res judicata thus raised wholly ignores the position created by the fact that at the trial of the suit to which reference has been made above, it was agreed by the parties concerned that the plaintiff the Burdwan Raj Estate, would be entitled to get the amount due as Government revenue plus half of that amount as profit of the plaintiff. On the agreement of the parties, there was no issue joined on the question agreed upon; and the suit was tried upon other issues. Reliance was placed on the side of the appellants on an observation contained in the judgment of this Court dated 16th December 1930, in the appeal arising from the suit of 1918; but as has been observed by Ghose, J., that observation could not operate to dissolve the agreement of parties, on which the trial Court proceeded. In the above view of the case before us, we have no hesitation in affirming the judgment of our learned brother Ghose, J. The appeal is dismissed with costs.