1. This is an appeal from the appellate judgment of the Additional District Judge of Pabna, dated the 31st May, 1921. The questions which the learned Additional Judge had to consider are thus stated by him:
(1) Was Mouza Chur Raninagar included within the putni held by the plaintiffs and other pro forma defendants under the malik defendants? Was Mehal No. 2159 created out of the lands of that putni?
(2) Are the plaintiffs entitled to a refund of the amount claimed?
2. Some short explanation is necessary to the nature of the dispute in connection with which these questions arose.
3. The plaintiffs and those defendants in the suit who are described as pro forma defendants are the proprietors of a putni tenure within the estate of the principal defendants Nos. 1 to 7. The tenure is bounded on one side by the river Ganges and in the year 1912-1913, a survey was made by the Government with the result that certain lands were formed into a separate estate No. 2159 known as Mouza Chur Raninagar, on the footing that the lands wore an accretion to the parent estate, Raninagar, the estate that is of the Principal defendants. On that footing a settlement was made under which the putnidars were to pay rent for these lands at the rate of Rs. 189 a year in addition to the rent payable for the original putni. It is stated in the judgments of the Courts below that in the settlement the Government was recorded as tahsildars of the proprietors of the estate. No suggestion appears to have been made that the putnidars were party to or bound by the proceedings. In the result, however, they were compelled to pay this additional rent for four years and they then brought the present suit to retrieve the amount so paid. Their case is that the original putni, the putni as originally created, for which rent was payable under their engagement with the proprietors, included the lands of the new estate No. 2159 and they contend accordingly that in respect of this area rent has been recovered from them twice over. They succeeded in the Courtis below and three of the principal defendants (Nos. 1 to 3) has preferred this appeal.
4. Now it is conceded by Dr. Mitter, the learned Vakil who has argued the case on behalf of the appellants, that the questions above set out were essentially questions of fact. The main burden of Dr. Mitter's argument has been that in deciding those questions of fact, the Courts below have committed an error of law in respect of the use which they have made of a certain judgment of the year 1874. The principal defendants, the proprietors, were not parties to the litigation or bound by the result. The judgment, it seems, decided a suit or suits between the putnidars as plaintiffs and the Secretary of State as defendant, in which the putnidars successfully asserted their title to Chur Raninagar as part of this putni. The learned Additional Judge says: 'It appears, that the plaintiffs in those cases obtained decree for lands of Raninagar and Mouza Chur Raninagar as appertaining to their putni taluk, and the entire lands were made into one new mouza named Decreer Chur Raninagar.' Then the learned Judge continues: 'It is contended for the appellants that they were not parties to those suits, and, therefore, the judgment and decree in those cases are not admissible against them. The argument is against established case-law, and I have no doubt that they are admissible in evidence. The decree and judgment prove that the predecessors of the plaintiffs claimed in 1874 lands of Mouza Chur Raninagar as appertaining to the putni taluk: their claim was upheld, and they remained in possession as before.'
5. Dr. Mitter has not, I think, disputed that the proceedings of 1874 and their result were relevant under Section 13 of the Evidence Act. Nor could he have successfully taken this position. In the judgment of a Full Bench of this Court in Tepu Khan v. Rajani Mohan Das (1898) 25 Cal. 522, the following passage occurs:-'It is clear from the decisions in the Privy Council that under certain circumstances and in certain cases, the judgment in a previous suit to which one of the parties in the subsequent suit was not a party may be admissible in evidence for certain purposes and with certain objects in the subsequent suit.' In a later case which came before the Privy Council [Dinomoni Chaudhurani v. Brojo Mohini Chaudhurani (1902) 29 Cal. 187] Lord Lindley delivering their Lordships' judgment observed that the words of Section 13 of the Evidence Act were very wide. I have no doubt that the litigation of 1874 was within the meaning of Section 13, a transaction or instance in which the right of the plaintiffs to hold the disputed lands as part of their putni was successfully asserted and this transaction or instance was relevant or admissible in evidence in the present suit. So far, I think, Dr. Mitter would not disagree. His objection, as I understand it, is that the learned Additional Judge in some way gave judicial force to the judgment as against the petitioners who are not bound by it. Of course if the learned Judge had expressed himself to the effect that the judgment was in law conclusive against the proprietors, he would have been guilty of serious error. As I read his words, however, I do not think that the learned Judge has attributed to the judgment any judicial force as against the proprietors. He treats the judgment or the transaction which it discloses as an item of fact in the history of the disputed lands. This clearly appears from what he says later in his own judgment which must be read as a whole. Two or three paragraphs further down after referring to other matters, he says, all these go to prove,' meaning each of the different events or items in the history of the land to which he had referred together went to show the title of the putnidars.
6. In the circumstances it seems to me merely hypercritical to find fault with the learned Additional Judge's statement that the judgment proves 'that the predecessor of the plaintiff claimed in 1874 lands of Mouza Chur Raninagar as appertaining to the putni taluk, their claim was upheld, and they remained in possession as before.' The relevancy of the previous suit and its result necessarily gave access to the judgment in that suit, and in my opinion the learned Judge was right in saying that the judgment proved the nature of the claim made and the legal effect or result that the claim was upheld. He was at liberty to use the judgment for that purpose and to that extent. The legal effect of the judgment as between the parties to the previous suit had to be determined from the judgment itself and when determined, it became not conclusive as between the parties to the present suit but a fact to be weighed in the balance like any other fact. Its probative force or weight in the circumstances was matter for a Court of fact to decide.
7. The point that this judgment of 1874 does not prove the previous or subsequent state of the possession is really a very small one. In the first place the learned Judge may have expressed himself badly. The subsequent state of the possession must clearly have depended on other evidence and there may have been other evidence also as to the previous state of the possession. But in any case the judgment of 1874 declares the right of the putnidars-to possession and as to subsequent possession there appears to be no dispute at all.
8. As to the case of Kashi Nath Pal v. Raja Jagat Kishore Acharyya Chaudhuri (1915) 20 C.W.N. 643 to which Dr. Mitter referred, in my opinion, the learned Additional Judge has not committed the error which was there condemned. Apart from the negligible point as to the previous state of the possession, the learned Judge had not treated recitals in the judgment of 1874 as substantive proof in the present case of the truth of the facts recited. His treatment of the judgment of 1874 is within the, principle that where a judgment is admissible, it is 'conclusive evidence for or against all persons, whether parties, privies or strangers, of its own existence, date and legal effect as distinguished from the accuracy of the decision rendered. 'The result is that in my opinion the learned Vakil's main contention is not substantiated.
9. The learned Vakil raised another point in connection with a document described is a document of the year 1287 which is Exhibit A on the record. This point, however, was not seriously pressed and no more need be said about it.
10. The last contention of the learned Vakil is that the Secretary of State should have been a party to this suit. As to this point, it appears that a complaint made in the trial Court that the Secretary of State was not a party was overruled by the learned Munsif. The complaint, however, does not appear to have been repeated in the lower appellate Court, and there is no decision of the learned Additional Judge upon it. It would seem that if this objection was ever seriously put forward it was afterwards abandoned. Moreover, the position of the Government in respect of the disputed lands is not very clear. I have referred to the statement in the judgments of the Courts below that the Government is recorded in the settlement proceedings as the tahsildar of the proprietors. Before we could say that the Secretary of State should or should not be a party, some further enquiry would be necessary as to the facts. That being so, I think this point fails in second appeal.
11. For the reasons I have stated I would dismiss this appeal with costs.
12. It is conceded that this judgment will govern Appeal No. 2546 of 1921, which should accordingly be also dismissed with costs.
13. I agree.