1. These two appeals arise out of two suits for declaration of title to, and recovery of possession of, two small plots of land appertaining to a big jote of 960 bighas.
2. The Court of first instance dismissed the suits. On appeal to the lower Appellate Court, that decree was reversed and the suits were decreed. The defendant has appealed to this Court.
3. The questions raised in this appeal are, first, whether there was an abandonment of the jote by the plaintiff's predecessor, secondly, whether the decision in the rent suit brought by the plaintiff against the defendant No, 1 operates as res judicata; and thirdly, whether the claim is barred by special limitation contained in Section 27 of Act VIII of 1869.
4. The first question, namely, the question of abandonment arises in this way. Four brothers Manuddi, Kalamdi, Sanabdi and Bajaruddi held a certain jote consisting of 960 bighas under the Raja of Gouripore, defendant No. 3. It is found that the jote was their ancestral jote, that they acquired a right of occupancy in it and also that it was a valuable property, that in 1304 (1897) there was a great earthquake which 'disturbed the levels of the country and caused subsidence of the river banks, the lands in this neighbourhood became subject to heavy inundations and this jote with others became uninhabitable and unculturable for some years. Most of the inhabitants then left the place but Manuddi, who appears to be one of the recorded jotedars, stuck to it till his death some 3 or 4 years after the earthquake.' After Manuddi's death, his two wives found it impossible to remain there any longer and one of his wives and children removed to a distant place, but the other wife and her children (soma of the plaintiffs being her children) removed to a place only two miles off and, took shelter there with her relations. The learned Subordinate Judge says: 'It is thus clear that Manuddi did not quit the land or abandon his residence until his death and that his heirs were compelled to leave their residence by unusual natural calamities over which they had no control.' Then he considers the question whether the heirs of Manuddi should be taken to have abandoned the land. We think that the learned Subordinate Judge lays down the law correctly when he says when a raiyat without giving notice goes away from the land he has occupied and neither cultivates it nor pays rent, the landlord is justified in assuming that he has relinquished it and the raiyat has no right to ask to be re-installed on the ground that he never formally relinquished the land. Mere non-payment of rent is not evidence of abandonment, but nonpayment of rent coupled with non occupation of land is evidence of an intention to abandon it.'
5. Manuddi, according to the finding of the Court of Appeal below, died in 1307 or 1308 and so his heirs left the place after that. If Manuddi died in 1307, the holding was left unoccupied for about a year; but if it be in 1308, there was perhaps no interruption of occupation. It appears that there were several sub-tenants under Manuddi before the earthquake, and one of the questions was whether Kudrat was one of them. The learned Subordinate Judge finds that he was and that he came upon the land in 1308 shortly after Manuddi's wife and children had left the place.
6. One of the principal questions in controversy in the case was whether Kudrat held the land on behalf of the plaintiff or on his own account.
7. The Munsif found that he was a mere squatter as alleged on behalf of the Zemindar and that he occupied a part of the jote on his own account. The Munsif arrived at that finding on a consideration of a certain petition and other evidence and circumstances mentioned in his judgment. But they have been dealt with by the Subordinate Judge, who came to the conclusion that Kudrat was a former subtenant of the jote and that he temporarily left it after the earthquake but came back in 1308. The Munsif found that Manuddi paid rent partly at least down to 1306 and that there was absolutely no evidence produced by the plaintiffs to show that they paid rent for 1307 or 1308 B.S. or for any subsequent period. But the learned Subordinate Judge points out that the Zemindar did not produce the Touzis for 1807 and 1308 although they were called for by the plaintiffs, nor explain the reasons for their non-production, and be accordingly presumed that if the Touzis for 1307 and 1308 were produced, they would show that some rent was paid for those years. There was no payment in 1309 and in 1310 some rent was paid by Kudrat. The Zemindar's amlah would not take the same as paymant on behalf of Manuddi, although it was actually credited in his name. The learned Subordinate Judge held that the payment must be taken to have been on behalf of the jotedars, In 1311 the Zemindar settled the jote with one Durga Nath. The plaintiff went to pay rent but the Dowan of the estate would not accept it. On these facts the learned Subordinate Judge found that there was no intention on the part of the heirs to abandon the jcte, that there was no voluntary abandonment, and that the heirs were compelled to leave the place under circumstances beyond their control. The bulk of the land became unculturable; only a small portion was cultivated and was occupied by Kudrat who, according to the learned Subordinate Judge, paid rent on behalf of the plaintiff. The Court below was of opinion that the Zemindar did not proceed against the jotedars under Section 52 of Act VIII of 1869 because the tenant would be entitled to considerable abatement of rent. On the whole, the Court below held that there was no abandonment As stated above, the learned Subordinate Judge correctly lays down the law on the point and on the findings arrived at by him we are unable to hold that he was wrong in his conclusions.
8. The second contention is whether the decision in the rent suit operates as res judicata. That was a suit brought by the plaintiff against the defendant No. 1 for rent and was based upon a registered Kabuliyat. The defendant denied the relationship of landlord and tenant, pleaded that the Kabuliyat was obtained by misrepresentation and set up a tenancy under the defendant No. 2 in the present case, who had derived title to the property in suit through one Durga Nath with whom the land was settled by the Zemindar, defendant No. 3. Two issues were raised IN the case, namely, whether there was relationship of lardlord and tenant between the plaintiff and the defendant No. 1 and whether the Kabuliyat was genuine. The Munsif decided the question against the plaintiff and he expressly said 'An incidental inquiry into the title is necessary'. On appeal the learned Subordinate Judge considered the question whether the jote was abandoned by the plaintiff's predecessor and decided the question against the plaintiff.
9. Reliance was paced on behalf of the appellant on the case of Radhamadhub Holdar v. Monohur Mukerji 15 C. 756 (P.C.) 15; I.A. 97; 12 Ind. Jur. 297; 5 Sar. P.C.j. 211; 7 Ind. Dec. (n.s.) 1088. But in that case the defendant set up a title in himself. Here the defendant set up the title of Dhula Prodhania (defendant No. 2) in the present case. As pointed out by Mitra, J., in the case of Sahadeb Dhali v. Ram Rudra Haldar (10 C.W.N. 80) 'The decisions OF this Court on the question of res judicata when the previous suit was one for recovery of rent may be classed under two heads. The first class of cases is when the defendant, the alleged tenant, sets up his own rights to the land and denies the relationship of landlord and tenant, denying the plaintiff's title to the land, and the substantial issue raised is--does the land covered by the suit belong to the plaintiff or the defendant.' The case of Kasiswar Murhopadhya v. Mohendra Nath Bhandari 25 C. 136; 13 Ind. Dec. (n.s.) 93. belongs to this class.
10. The second class of cases bearing on the question of res judicata is where the defendant either sets up the title of a third person, and denies the relationship of landlord and tenant or where the defendant pleads that he is not either in occupation of the land, or that the tenancy which existed had expired. In this class of cases the only issue is--did the relationship of landlord and tenant exist between the parties during the years covered by the suit. The case of Srihari Banerjee v. Rhitish Chandra Rai Bahadoor 24 C. 569; 1 C.W.N. 509; 12 Ind. Dec. (n.s) 1048. in which the case of Radhamadhub Holdar v. Monohur Mukerji 15 C. 756 (P.C.) 15; I.A. 97; 12 Ind. Jur. 297; 5 Sar. P.C.j. 211; 7 Ind. Dec. (n.s.) 1088. was distinguished, belongs to this class.
11. In Run Bahadur Singh v Lucho Koer (11 C. 30; (P.C.); 12 I.A. 23; 4 Sar. P.C.J. 602; 9 Ind. Jur. 202; 5 Ind. Dec. (n.s.) 960,) the Judicial Committee observed as follows: 'Haying regard, however, to the subject-matter of the suit, to the form of the issue (which has been above set out) and to some expressions of the learned Judge, their Lordships are further of opinion that the question of title was no more than incidental and subsidiary to the main question, vie., whether any and what rent was due from the tenant, and that on this ground also the judgment was not conclusive.'
12. The Full Bench decision in the case of Dwarkanath, Roy v. Ram. Chand Aich(26 C. 428 (F.B.), 3 C.W.N. 266; 13 Ind. Dec. (N.S.) 876. may also be referred to. There a previous suit for rent was dismissed, the defendant haying set up the title of a third person who was no party to that suit. In a subsequent suit against the defendant and the person whose right was set up by the defendant, the Court held that having regard to the nature of the relief sought in the previous suit, and the relief sought in the present suit, it is impossible to say that the plaintiff is barred in this suit from establishing his title to the land both against the alleged tenant and also against the person whose title as landlord the tenant defendant had set up in the rent suit.'
13. We are accordingly of opinion that the decision in the previous rent suit does not operate as res judicata.
14. The last question is whether the claim is barred by special limitation under Section 27 of Act VIII of 1869.
15. The appellant relies upon the case of Srinath Bhattacharji v. Ram Ratan De 12 C. 606; 6 Ind. Dec. (N.S.) 412,. Bat in that case the tenant sought to recover possession of the holding from his landlord who had wrongfully ejected him. In the present case the plaintiff says that he wants to have his title declared as superior jotedar against the defendant No. 1, his tenant, and to obtain possession of the land by ejecting the defendant No. 1, The decree for khas possession has been passed by the lower Appellate Court against the defendant No. 1 alone. No decree for possession has been passed against the defendant No. 3 nor against the defendant No. 2, whose rights were set up by the defendant No. 1 as his superior jotedar. It is contended that there is no cause of action against the Raja, defendant No. 3, because the cause of action was stated in the plaint to have arisen from the 21st January 1913, when the defendant filed a written statement. In that written statement he set up defendant No, 2 as his superior landlord and stated that after the earth, quake the land came into the Mas. possession of defendant No. 3 That was the cause of action for making the defendants Nos. 2 and 3 parties to the suit. There was no dispossession alleged by the plaintiff as against the defendant No. 2 or defendant No. 3 and the defendant No. 3 himself does not say that he had dispossessed him but that the jote was abandoned by the plaintiff. In these circumstances the suits are not barred by special limitation.
16. The result is that the appeals are dismissed with costs.