W. Comer Petheram, C.J.
1. This is a suit brought by the plaintiffs against the defendants to recover the rent of a jote, and the rent claimed is at the rate of Rs. 52-12 a year. The defendant Nizamuddin his written statement, admits the holding, but states that the rental is Rs. 15-6-6 instead of the larger sum, and goes on to say that everything has been paid. The matter came before the Munsif in the first instance, and he decreed the suit at the rental alleged by the plaintiffs on the ground that, in a prior suit brought by the plaintiffs against the defendants in respect of the same holding, the first Court of Appeal had decreed the plaintiffs' rent at that rate. From that judgment the defendants appealed, and the matter then came before the Subordinate Judge, and he decreed the appeal and modified the decree by giving the plaintiffs a decree for the amount of rent at Rs. 15-6-6 only, on the ground that the decree, upon which the plaintiffs had relied in the first Court, had in the meantime been reversed by this Court, and that the decree, as it then stood, was for the smaller amount only. From that decision the plaintiffs have now appealed, and their only ground really is that the decision in the prior suit cannot be given in evidence to show what is the rental in this suit. Now, that is a question upon which there has been a considerable amount of discussion, but the last case on the subject which is reported is the case of Hurry Behari Bhagat v. Pargun Ahir I.L.R. 19 Cal. 656. In that case the learned Judges held that, where in a rent-suit a Judge tries the question and gives judgment on the question, 'what is the yearly rent,' and makes that the foundation of his judgment, that becomes res judicata between the parties. That, as I said just now, is the last case on the subject, and is a case which we are bound to follow, and consequently it has been necessary to do, as was done in that case, viz., to examine the judgment of this Court upon which the Subordinate Judge acted in giving a decree for the smaller sum. When one comes to examine that judgment, it appears that, as in the case of Hurry Behari Bhagat v. Pargun Ahir I.L.R. 19 Cal. 656 the Judges in arriving at the conclusion at which they arrived, as to the amount of money due from the defendants to the plaintiffs, tried and decided the question judicially, what was the yearly rent at which the tenure was held by the defendants under the plaintiffs. They having done that, as in the other case, this case falls exactly within the authority of that case. Consequently, the conclusion at which the learned Subordinate Judge arrived upon these materials was correct, and the materials upon which he arrived at it were rightly and properly before him. In the result this appeal must be dismissed with costs.
2. I concur in holding that this appeal should be dismissed. I think I ought to say, because I entertain a somewhat strong opinion on the subject, an opinion not shared in any degree by the Chief Justice that even if the judgment of the High Court--a judgment of Mr. Justice Ghose and myself, which the Chief Justice says, having been arrived at upon the authority of the case decided by Mr. Justice Pigot and Mr. Justice Gordon, operates as res judicata--does not operate as such, still it is some evidence as to the rate of lent of the previous year. But I distinctly wish it to be understood that this is an expression of my own opinion, and that it is not shared in by the Chief Justice.