R.C. Mitter, J.
1. This appeal is by the defendants in a suit instituted by the plaintiffs for a declaration that the lands recorded in Khatians Nos. 228 and 314 of Mouza Mathurapur and in Khatian No. 69 of Mouza Akatpur, constitute one Jama bearing a rental of Rs. 15 per year and that the decree obtained by the landlords defendants in rent suit No. 499 of 1931 is a fraudulent one. In the record of rights which was finally published under Ch. 10, Ben. Ten. Act, the land recorded in Khatian 314 of Mouza Mathurapur has been shown to be one holding held at a rental of Rs. 15 a year, and the lands in Khatian 228 of Mouza Mathurapur, 'and in Khatian 69 of Mouza Akatpur have been shown as constituting another holding bearing a rental of Rs. 15. In 1931 the defendants instituted a suit to recover rent for the years 1334 to 1337 at the rate of Rs. 15 a year from the plaintiffs in the present suit and their co-sharers tenants. The plaintiffs in this suit did not enter appearance but their co-tenants did. The decree was an ex parte decree against the present plaintiffs and a contested decree against their co-sharers. In the plaint of that suit the defendants described the tenancy by reference to the khatian number. They said that the tenancy consisted of lands recorded in Khatian 314 of Mouza Mathurapur. The contesting defendants in that suit appeared and raised the defence that the tenancy which they and their co-sharers held at a rental of Rs. 15 a year under the landlords, comprised the lands not only of Khatian 314 but also the lands in Khatian 228 of Mathurapur and Khatian 69 of Akatpur.
2. On that the following issue was raised: 'Have the plaintiffs included in the two suits (we are not concerned with the second suit) all the plots of land covered by the Jamas in question? If not can they get a decree?' As I read the judgment it appears that the Court decided the issue in favour of the landlords. It held that although the documents exhibited in the case would tend to support the tenants' case, the record of rights must be taken to be correct inasmuch as there was no certain evidence to rebut it. On that footing a decree was passed against the tenants. For the purpose of defeating this suit the landlords defendants have raised two points, first of all they state that the decision on the aforesaid issue in the rent suit of 1931, operates as res judicata and prevents the plaintiffs in the present suit from re-agitating the same question; and secondly, they say that in fact the record of rights is correct, there being really two Jamas each held at a rental of Rs. 15. On the merits the lower appellate Court has come to the conclusion that the plaintiff's case is true and the lands recorded in Khatians 314, 228 and 69 form one single holding at a rental of Rs. 15. On the question of res judicata the lower appellate Court has differed from the first Court. The first Court held in favour of the defendants, namely, the question is res judicata, but the lower appellate Court has taken a contrary view. In my judgment the view taken by the lower appellate Court is correct.
3. The rent suit was instituted after the amendment of the Bengal Tenancy Act. Section 148, Clause (c) provides that when the record of rights is finally published the plaint in a rent suit shall contain a statement of the serial number or numbers borne by the tenancy in the record of rights and of the area and rental of the tenancy according to such record. Having regard to the proviso which is added to Sub-section (c), it is not necessary now that the plaint in a rent suit shall contain the statement of situation, designation, extent and boundaries of the land held by the tenant where a Record of Rights has been finally published, that is to say Clause (b), Section 148, has no application.
4. The plaint in the rent suit filed after the amendment came into force, would be a good plaint if it contains the serial number or numbers of the tenancy in the Record of Rights and of the area and rental according to the Record of Rights. Such being the position the question is whether the issue which was raised in the rent suit of 1931 was a direct and substantial issue between the parties or was only an incidental issue. In my judgment even if that issue had been decided against the landlords the rent suit could not have been dismissed because the plaint had complied sufficiently with the requirements of law as indicated in Section 148, Clause (c), Ben. Ten. Act, and there was not dispute as to the rate of rent. In Concha v. Concha (1886) 11 A C 541 Lord Herschell at p. 550 has formulated a test for the purpose of deciding whether an issue raised and decided in a case, is a direct and substantial issue or only an incidental or collateral issue. The passage runs thus:
Now I do not think it can be disputed that that finding was not essential to the judgment in the cause. If there had been no such finding or if the finding had been the other way, it might equally well have been the case that the learned Judge was bound to decree probate of the will to the executors.
5. In that case the probate Court in deciding whether a probate should issue or not, had to decide the issue as to whether the testator had a domicile in England or in Chilli. The learned Judge of the Probate Court, Sir C. Cresswell, came to the conclusion that the testator had an English domicile at the date of the suit. Later on, in a Bill instituted by the daughter of the testator, a question arose whether the testator could dispose of effectively the whole of the property, it being her case that if the testator had a domicile at Chilli he had disposing power only over a fourth part of his estate and she was entitled to the remainder of the estate under the Chillian law. The decision of the Probate Court was put forward and it was stated that the said decision operated as res judicata on the question of domicile. The said objection was overruled.
6. The facts of this case are that even if a decision on issue 1 in the rent suit had been justly the other way, that is to say, even if that issue had been decided in favour of the defendants in the rent suit the Court was bound to decree the rent suit inasmuch as there was no dispute about the relationship of landlord and tenant and as to the rate of rent or of the period in arrears. The plaint had complied with the provisions of Clause (c), Section 148. For these reasons I hold the decision in the rent suit on the point in controversy being a decision on an incidental, and collateral issue, is not res judicata between the parties in this suit. For these reasons I dismiss this appeal with costs. The prayer for leave to appeal under Clause 15, Letters Patent, is refused.