1. This is an appeal by the defendants in a suit for arrears of rent. We shall refer briefly to the antecedent history so as to make intelligible the points in controversy between the parties.
2. On the 22nd August, 1913, the plaintiffs sued defendants for rent of the disputed property for the years 1315 to 1318. That suit was decided by the Subordinate Judge on the 27th May, 1916. The decree was modified on appeal by the District Judge on the 3rd December, 1918. On second appeal to this Court the decree was further modified on the 22nd July, 1921. In the meanwhile on the 21st August, 1914, the plaintiffs instituted another suit against the defendants for rent from the Chaitra instalment of 1318 to the Ashar instalment of 1321. That suit was decreed and the decree was apparently satisfied. Subsequently on the 14th April, 1919, the plaintiff instituted the present suit for recovery of what is called excess rent in respect of the period covered by the second suit as also the rent which has accrued due from 1322 to 1325. The Subordinate Judge decreed the claim on the 28th June, 1920. That decree has been assailed before us substantially on three grounds, namely, first, that the rent in respect of the period not covered by the previous litigation should be decreed at the rate fixed by the High Court in the first suit; secondly, that the claim in respect of the period covered by the second suit is not maintainable; and thirdly, that cesses have been decreed at a rate higher than that leviable.
3. As regards the first point, there is clearly no room for serious controversy. In the first suit the plaintiffs invited the Court to adjust the rent payable in respect of the lands in the occupation of the defendants. It was found that land had accreted to the original tenancy and that grounds existed for variation in the rate of rent. The ultimate result was that the rent was fixed at Rs. 917-13 by this Court in respect of all the lands in the occupation of the tenants. It is plain that for the period now in suit, that is, from 1322 to 1325 which is subsequent to the time of commencement of the adjusted rate as determined by the decree of this Court, the plaintiffs are entitled to a decree at that rate only. The decree will be varied accordingly.
4. As regards the second point, the plaintiffs are in a real difficulty. When they instituted the second suit the first suit was already in progress. In the first suit they had prayed for adjustment of rent, that is, rent in respect of the excess land in the occupation of the tenants as also for settlement of rent at a higher rate than that paid before. In the second suit, however, they did pot repeat this claim, and satisfied themselves with a demand for rent in respect of the original lands of the tenancy at what is called the old rate. In the plaint they stated expressly that they reserved the right for settlement of rent of the excess quantity of land, and we gather, also for recovery of rent at the enhanced rate. No order, however, allowing such reservation was made by the Court. Consequently, the question arises, whether the plaintiffs are entitled to claim, in respect of the period covered by the second suit, a sum in addition to what they recovered in that litigation, We are clearly of opinion that the claim is barred. It is now well settled, that in respect of excess lands in the occupation of a tenant, the landlord is entitled to recover what is called back rent; in other words, the landlord is entitled in any litigation to have an enquiry as to the exact area in the occupation of the tenant and the rent recoverable in respect thereof for the. years in suit. This was decided by this Court in the cases of Assanullah v. Mohini Mohan (1899) 26 Cal. 739, and Jagannath Manzi v. Jumman Ali (1901) 29 Cal. 247, and was reaffirmed in Ejel Mullick v. Felai Mullick (1914) 21 C.L.J. 309. Consequently in respect of the excess land, the plaintiffs were competent to put forward a claim in the second suit. This they omitted to do. They might also have claimed rent, in respect as well of the original land as the additional land, at the higher rate, in the same way as they had done in the first suit. The decree in the second suit would then have been dependent upon the result of the first litigation. We are accordingly of opinion that the claim in respect of excess land and the claim at the enhanced rate for the period covered by the second suit is not maintainable. In this view, it is not necessary to consider the question of limitation which has been raised by the appellant and sought to be supported by the decision of the Judicial Committee in Huroproshad Roy v. Gopal Das Dutt (1882) 9 Cal. 255, as explained in Hurro Kumar Ghose v. Kali Krishna Thakur (1889) 17 Cal. 251. Nor need we consider the precise effect of the decision of the Judicial Committee in Hem Chandra Chowdhury v. Kali Prosanna Bhaduri (1903) 30 Cal. 1033; but this much is incontrovertible that during the pendency of the first suit where a claim was made for adjustment of rent in respect of additional land, the claim for assessment of rent at the enhanced rate could not possibly be taken to have suspended the assertion of a similar claim in respect of the subsequent period covered by the second suit.
5. As regards the third point, we find that there are no materials on the record which can enable the Court to hold that cesses cannot be recovered at the rate claimed in the plaint. In view of the comparatively small sum in controversy, we do not think it desirable to remand the case for further enquiry into this point. The decree will consequently stand in respect of cesses for the period from 1322 to 1325 as allowed by the Subordinate Judge. But this will not be taken to preclude an investigation into the question of the rate of cesses recoverable in respect of any subsequent period.
6. The appellants are entitled to their costs in this Court. We assess the hearing fee at three gold mohurs.