1. This is an appeal by the plaintiff in a suit for recovery of arrears of rent. Defendant 11 appears and contests the suit alleging that the tenancy is a niskar one. The learned Munsif who heard the suit at first instance raised inter alia issue 2 in the following terms : 'Is the plaintiff entitled to recover any rent for the holding?' While deciding this issue, the learned Munsif observes:
It appears from khatian (Ex. 2) that the holding was assessed with rent. The assessment was under the provisions of Section 105A, Ben. Ten. Act. This assessment has the effect of a decree. I do not think the defendant is competent to agitate the matter in this Court. So I find that the plaintiff is entitled to recover rents as claimed.
2. He, therefore, decreed the suit. On appeal by the defendant, the learned District Judge, being of opinion that an ex parte decision under Section 105, Ben. Ten. Act, settling a fair and equitable rent does not bar a tenant from claiming niskar title in a subsequent rent suit, and finding that Section 105 proceedings were decided ex parte in this case, allowed the appeal, and after setting aside the judgment and decree of the Court of first instance, remanded the whole suit for re-hearing, giving both the parties opportunity to adduce further evidence. The learned Munsif who heard the case after this remand raised the following issue : 'Is the jama a niskar one?' He took this to be the only point for decision. While deciding this point, the learned Munsif observed as follows:
The plaintiff contends that the defendant cannot agitate the matter after remand in view of the fact that the plaintiff filed an application under Section 26J, Ben. Ten. Act, which was allowed. It appears from Exs. 3, 4-4A and 5 that the plaintiff filed an application under Section 26J, Ben. Ten. Act, claiming landlords' fee in respect of the disputed tank describing it belonging to an occupancy holding. The defendant in this suit filed an objection similar to the objection taken in this suit. On the date of hearing the defendant did not contest and the application was allowed ex parte. The plaintiff contends that the objection of the defendant is barred by res judicata. In support the learned pleader for the plaintiff refers to a case in Krishna Chandra v. Maniklal : AIR1939Cal169 . The present suit was sent on remand after setting aside the judgment and decree of this Court, and after remand the suit is taken up anew. In view of the reported decision the objection of the defendant in this suit at this stage must be held to be barred by the principle of res judicata.
3. In this view the learned Munsif held that the jama was not a niskar one and that the plaintiff was entitled to recover the rent as claimed. Defendant 1 preferred an appeal against this decision ( and the learned Subordinate Judge allowed the appeal and dismissed the plaintiff's suit. He held that (1) after the decision of the Court of appeal remanding the suit the question of res judicata was no longer open for decision by the learned Munsif and (2) that defendants succeeded in showing that the tenancy was niskar. In the present appeal by the plaintiff, it is contended : 1(a)--that the Court of appeal below was wrong in holding that after remand, the question of res judicata was no longer open; 1 (b) that the Court of appeal below should have held that the decision in the proceeding under Section 26J, Ben. Ten. Act, operated as res judicata in respect of the incidents of the tenancy; (2) that the statements in the documents relied on by the Court of appeal below were not admissible in evidence against the landlord, Section 18A, Ben. Ten. Act, made them inadmissible, and consequently, the finding of the Court of appeal below that the tenancy is a niskar one cannot be maintained, having been passed on this inadmissible evidence. As regards point 1 (a) the learned Subordinate Judge was wrong in holding that the plea of res judicata could no longer be taken after remand. Normally, res judicata is pleaded in bar to the hearing of the whole suit or some issue in it. When so pleaded, all the available grounds in support of it must be urged once for all. But when,, as in the present case, no issue as to res judicata is raised, but only a particular deoision is incidentally considered as a bar by one Court and no bar by the appellate Court, the plea is not wholly excluded thereby specially when the whole suit is directed to be tried on fresh evidence.
4. As regards point 1(b), the question is whether the decision in the proceeding under Section 26J, Ben. Ten. Act, operates as res judioata in this case. It appears from Exs. 3, 4-4A and 5 that the plaintiff filed an application under Section 26J, Ben. Ten. Act, claiming landlords' fees in respect of the disputed tank described in it as an oooupanoy holding bearing rent. The defendant in that proceeding filed an objection on the ground that the tenancy was a niskar one. On the date of hearing, however, he did not contest and the application was allowed ex parte. The question is whether this decision given under Section 26J, Ben. Ten. Act, involves a decision that the tenancy is not a niskar one, and whether it would operate as res judicata in the present suit. In support of the view that this decision in the proceeding under Section 26J, Ben. Ten. Act, would debar the defendant from re-agitating the question in any subsequent suit or proceeding, the learned Munsif relied on the decision in Krishna Chandra v. Maniklal : AIR1939Cal169 . Mr. Banerji appearing for the appellant very fairly pointed out that a contrary view was taken in the later case in Mahalxmi Bank Ltd. V. Abdul Khaleque ('39) 43 C.W.N. 1046. In Krishna Chandra v. Maniklal : AIR1939Cal169 Costello J. summarised the essentials of the principles of res judicata thus:
In order that the principles of res judicata should apply, it is essential that the former judg. ment in the present matter, i.e., the decision of the Munsif given in the proceedings under Section 26J must be (i) that of a Court of concurrent jurisdiction, (ii) directly in question in the subsequent suit, and (iii) between the same parties.
5. The learned Judge, it may be pointed out, omitted to notice that the previous proceeding must not be a summary one and must be a proceeding of the pature of a suit as has been pointed out by the Judicial Committee in Bhagwan Din v. Gir Har Saroop . In Mahalxmi Bank Ltd. V. Abdul Khaleque ('39) 43 C.W.N. 1046 my learned brothers Mukherjea and Roxburgh JJ. took the contrary view. In delivering judgment in that case, my learned brother Mukherjea J. observed as follows:
With all respect to the learned Judges who decided that case, (referring to the case in Krishna Chandra v. Maniklal : AIR1939Cal169 . I find it extremely difficult to accept this decision as correct. I think that the learned Judges entirely overlooked the fact that there is a vital difference between a suit and an application both as regards the scope and nature of the orders passed therein, and that the powers of the Court while dealing with the one are not the same as are exercised with regard to the other.
6. Then later on the learned Judge observes:
In my opinion, the order of the Court in the Section 26J proceeding cannot operate as res judicata in a subsequent suit for determination of status. Section 11, Civil P.C., has obviously no application.... The question is whether there would be a bar under the general principles of res judicata, quite apart from Section 11, Civil P.C. I think the answer to this question must be in the negative.
7. Later on, he says:
The immediate subject of adjudication in an application under Section 26J, Ben. Ten. Act, is whether the landlord is entitled to transfer fees on a particular transfer. That matter cannot be withdrawn from the operation of that order, but however much it may be necessary to pass that order that the Court should determine the nature of the tenancy, such matter being outside the jurisdiction of the Court dealing with the petition would only be 'incidentally cognizable' and could not operate as res judicata.
8. I respectfully agree with the view expressed by my learned brother in Mahalxmi Bank Ltd. v. Abdul Khaleque ('39) 43 C.W.N. 1046. As regards point (2) raised in this appeal, viz., that the statements in the documents relied on by the Court of appeal below are not admissible in evidence against the landlord, the documents in question are: 'Ex. B, a mortgage decree dated 14th June 1933, in which the property is described as lakheraj but to which the landlord was not a party ; Ex. D1, a mortgage deed of the year 1883 wherein the tenant mortgagor described his interest as niskar; Ex. D2 another mortgage deed of the year 1899; Ex. D, a mortgage deed of 1904 by the old tenant describing his interest as niskar; Ex. D3, a kobala of the year 1904 to which again the landlord was not a party and Ex. D4, another kobala of the year 1924 wherein the property was described as niskar to which the landlord was not a party.
9. Mr. Banerjee appearing for the appellant contends (1) that the statements in these documents as to the niskar character of the tenancy are not at all relevant under any of the provisions of the Evidence Act, and (2) that even if so relevant they are excluded from evidence by Section 18A, Ben. Ten. Act. In support of this contention, he relies on the language of that section as also on the oases in Jogendra Krishna Banerjee v. Sm. Subashini Dassi : AIR1941Cal541 , Kanta Mohan Mallik v. Basudeo Ghora ('35) 164 I.C. 319 and Brojenddra Kishore v. Mohim Chandra : AIR1927Cal1 . Mr. Sen appearing for the respondent contends that these statements may not be used against the landlord as evidence of the niskar incident of the tenancy but there is no bar to their being taken in evidenoe as instances in which the niskar right was asserted by the tenant within the meaning of Section 13(b), Evidence Act. In support of this contention he relies on the cases in Banwarilal Singh v. Dwarkanath Missir ('18) 5 A.I.R. 1918 Cal. 34 and Keshava Prasad Singh v. Brahmdev Rai ('3) 20 A.I.R. 1933 Pat. 656. The only provision of the Evidence Act that could be referred to by Mr. Sen as making these statements relevant is Section 13 of the Act. The section runs as follows:
Where the question is as to the existence of any right or custom, the following facts are relevant:
(a) any transaction by which the right or custom in question was 'created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence;
(b) particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from.
10. In view of the earlier deoisiohs of this Court noticed in Jogendra Krishna Banerjee v. Sm. Subashini Dassi : AIR1941Cal541 . Mr. Sen conceded that the statements in question would, not be relevant under Clauses (a) of the section. He, however, contends that these would be relevant under Clause (b) of that section and in support of his contention strongly relies on Banwarilal Singh v. Dwarkanath Missir ('18) 5 A.I.R. 1918 Cal. 34 at p. 581. Mr. Sen contends that the question in the present case is as to the existence of the niskar right. The above documents give instances in which this niskar right was asserted by the tenant. Consequently they are relevant under Section 13(b), Evidence Act.
11. Clause (b), however, does not bring in the particular instances in which the right was asserted. The clause speaks of the particular instences (1) in which the right was claimed...or (2) in which its exercise was asserted. The word 'claimed' implies a demand which involves the presence of the party against whom such demand is made. In my opinion, none of the instances evidenced by the documents in question was an instance in which the niskar right was exercised or its exercise was asserted. In my judgment, therefore, the documents in question were not admissible in evidence in this case under Section 13(b), Evidence Act. Moreover, the section does not bring in the statement itself, but only the instances in which the exercise of the right was asserted. Even assuming that the documents are relevant under Section 13(b), Evidence Act, Section 18A, Ben. Ten. Act excludes them from being used in evidence against the landlord. Section 18A, Ben. Ten. Act, stands as follows:
Notwithstanding anything contained in Section 13, Evidence Act, nothing contained in any instrument of transfer to which the landlord is not a party shall be evidence against the landlord of the permanence, the amount or fixity of rent, the area, the transferability or any incident of any tenure or holding referred to in such instrument.
12. The words 'notwithstanding anything contained in Section 13, Evidence Act' have been added by the Bengal Tenancy (Amendment) Act, 1928, (Act 4 of 1928). The case in Banwarilal Singh v. Dwarkanath Missir ('18) 5 A.I.R. 1918 Cal. 34 at p. 581 was decided long before this amendment of the section and the Patna decision referred to by Mr. Sen was also in respect of a rule of law without these words. Mr. Sen contends that the addition of these words did not in the least affect the substantive portion of the section which prohibits only evidence of any incident of any tenure or holding against the landlord. His contention is that he is using those statements not as evidence of the niskar incident of the tenancy but as evidence of instances in which this incident was asserted. He contends that these two are distinct things and he supports his contention by reference to Section 5, Evidence Act, as also the decision in Banwarilal Singh v. Dwarkanath Missir ('18) 5 A.I.R. 1918 Cal. 34. In my judgment Section 18A, Ben. Ten. Act, even as it stood before the above amendment, excluded from evidence the statements contained in documents of the kind in question in the present case. When any incident of a tenancy or right is in question in a suit, 'the particular instances' which are made relevant by Section 13(b), Evidence Act, become thereby evidence of the right or incident within the meaning of Section 18A, Ben. Ten. Act. The words 'evidence of any incident' in Section 18A, Ben. Ten. Act, were, in my judgment, comprehensive enough to mean and include the evidence of the existence or non-existence of the incident in question as also of such other facts as would be relevant in respect thereof by the Evidence Act.
13. In any case after the amendment of the section by the amending Act of 1928 the position has been clear in this respect. As has been pointed out by Mr. Mukherjee appearing for the minor pro forma respondents, Section 13, Evidence Act, does not contemplate evidence of any incident or right in the sense of evidence of any grant creating these incidents or rights. Section 13 contemplates only certain transactions and instances as evidence of facts relevant to the fact in issue in any particular case, and it makes these transactions and instances relevant for the purpose of establishing any right or incident, thus making such transactions or instances evidence of the fact in issue. If the words 'evidence of any incident' in Section 18A, Ben. Ten. Act, be taken in the narrow sense contended for by Mr. Sen, then the words introduced by the amendment will be absolutely without any significance. With the narrow meaning given to the substantive portion of Section 18A, Ben. Ten. Act, no case can be thought of where the facts relevant under Section 13, Evidence Act, will be excluded by Section 18A, Ben. Ten. Act. In my opinion the contents of the documents in question are not admissible in evidence against the present appellant and these must be excluded from consideration.
14. I am, however, of opinion that even excluding these documents there is enough evidence in this case to establish the niskar right of the respondents. In order to come to his finding on the point the learned Subordinate Judge relied on three items of evidence: (1) The first item Ex. A, is an application dated 6th March 1933, for execution of a decree obtained by the present plaintiff against respondent 2. The plaintiff prayed for execution of his decree by attaching and selling the present property along with certain other properties and in that application he described the interest of his debtor as lakheraj so far as this property was concerned so that this document contains an admission of the plaintiff that the tenancy was a rent-free one. (2) The second item of evidence taken into consideration by the learned Subordinate Judge is the long course of conduct. There has been no realisation of rent in respect of this tenancy, and it is not the plaintiff's case that he ever demanded any rent or ever realised any rent for this tenancy. (3) The third item of evidence taken into consideration is the statements contained in the documents objected to by the appellants in the present appeal. The admission in question is dated 6th March 1933, before any trouble arose as to the status of this tenant. The cadastral survey record was finally published two months after this date, and it recorded that though no rent was paid for this tenancy, rent was payable for it. The whole trouble seems to have arisen after this record and the landlord who evidently has all along been inactive in this respect proceeded immediately to have the rent assessed and succeeded in getting an order ex parte from the revenue authorities. In my opinion, the long inaction on the part of the successive landlords coupled with this admission contained in Ex. A amply entitles me to come to the conclusion that the tenancy is a niskar one. In the result, this appeal is dismissed, but I make no order as to costs.