Tottenham and Agnew, JJ.
1. The points taken in this second appeal relate to certain decrees adduced in evidence by the plaintiffs in the Courts below.
2. The question at issue between the parties was, whether the rent of the tenure in question was payable solely in cash, or partly in cash and partly in kind, as claimed by the plaintiff. The plaintiff put in, as part of his evidence, three decrees. One was a decree based on a solenamah and made in the year 1858, and the other two were ex parte decrees, obtained in 1868 and 1876 respectively.
3. In the solenamah decree it was recited that the plaintiffs alleged the rent of the tenure to be payable partly in cash and partly in kind, but the claim was only in respect of cash rent; and the decree, according to an agreement between the parties, was for the payment of a certain amount of money.
4. The ex parte decrees of 1868 and 1876 were, it appears, for rent both in cash and in kind. As regards the first decree on the solenamah the lower Appellate Court held that that decree did not in any way decide that the rent of the tenure was partly payable in kind; and it has been contended before us that the lower Appellate Court was wrong in this interpretation. The point was not very much pressed; and we are clearly of opinion that the lower Appellate Court was right; for the decree in question decided nothing whatever as to the rent being payable in kind, it was simply a decree containing a recital of the plaint, but ordering payment of rent in cash according to an agreement between the parties.
5. As regards the ex parte decrees of 1868 and 1876, the lower Appellate Court held that they were inadmissible in evidence. And against this decision this appeal has been preferred. The lower Appellate Court considered them to be inadmissible, because the appellant, who is the defendant in this suit, was not made a party in either of the suits in which the ex parte decrees were passed, although he was then the owner of the tenure in respect of which the arrears were claimed. The first Court had admitted these decrees in evidence upon the ground that they were obtained against the registered tenants. The present defendant claims to have acquired the tenure by foreclosure, but he did not register the transfer in the plaintiffs' books.
6. For the appellant before us it is contended that these decrees were admissible as having been obtained against the registered tenants; and much reliance' has been placed upon the decision of a Full Bench of this Court in Sham Chand Koondoo v. Brojonath Pal Chowdhry 21 W.R. 94 and other cases have also been cited. It appears to us, however, that the pleader for the respondent is right in his contention that the Full Bench decision in Sham Chand Koondoo v. Brojonath Pal Chowdhry 21 W.R. 94 did not hold that a decree against a registered tenant was to be evidence for ever in future proceedings against an unregistered transferee not a party to it, and who had become the actual owner of the tenure; but all that was held in that case was that for the purpose of that particular decree, that is, with reference to its satisfaction, the unregistered transferee was bound by that decree whether he was a party to it or not, the tenure being liable for the rent. It seems to us that upon the findings in the present case the ex parte decrees in question are not admissible against the present defendant. He was not a party to them, nor does he derive his title from the parties against whom those decrees were passed. The finding of the lower Appellate Court is that the defendant's title was complete before the decrees were obtained against the registered tenants of the tenure. As the defendant therefore was not a party to the suits in which those decrees were obtained, and does not claim through the parties against whom those decrees were passed, the Full Bench decision in Gujju Lall v. Fatteh Lall I.L.R. 6 Cal. 171 precludes us from holding that they were admissible. Although, therefore, the present defendant was bound as owner of the tenure by the ex parte decrees when passed, we cannot hold that they are evidence against him in the present proceedings.
7. The appeal is dismissed with costs.