1. These two appeals by the plaintiff landlord arise out of two suits for rent in respect of two mokarari tenures held by the defendant-respondent under the plaintiff. Second Appeal No. 114, relates to Suit No. 24, and No. 115 relates to Suit No. 27. The appeals will have to be dealt with separately as the facts of the two cases are different.
2. I will take Appeal No. 114 first. In this case the tenure was created by a pattah of the year 1867, under the predecessor of the plaintiff by which the defendant's predecessor held 2877, bighas and paid a rent of Rs. 359-10-0. In the finally published Record of Rights 2877 bighas were shown within the tenancy of the defendant, but the contiguous lands were shown in possession of the plaintiff as his khas lands. The defendant brought Title Suit No. 360 of 1923 with respect to 105 plots which were recorded as plaintiffs khas land in the settlement record. Defendant obtained a decree for recovery of possession of lands which were included within the Thak boundary and this decision was affirmed on appeal to the District Judge. The plaint in the present suit included the lands for which defendant obtained a decree for possession. The plea of the defendant in the present suit is that as there has been a dispossession by the landlord from a portion of the tenancy lands there ought to be total suspension of rent. The defendant objected that all the lands for which he recovered the decree had not been included in the plaint. The Subordinate Judge who tried the case in the first instance left the question as to whether all the lands were included in the plaint or not open, but gave a decree to the plaintiffs.
3. On appeal the Additional District Judge of Midnapore has reversed the decision and dismissed plaintiff's suit. Hence the present appeal.
4. The reasoning of the lower appellate Court has been subjected to considerable criticism by the learned advocate for the appellants and it is said that the learned Judge's conclusion that the:
act of the landlord's agent in having a record of right made in a particular way with the intention of depriving the tenant of the engagement of demised premises amounts to eviction
cannot be sustained in law. This is so. If this finding had stood alone that judgment could not be supported, but' the District Judge has found that the widow of Raja Prithipal, who is the adoptive mother of the present defendant, was dispossessed by the plaintiffs' predecessor and that state of things continues up till now and the inclusion of the dispossessed land in the present suit cannot amount to restitution. On these findings it is difficult to say that there has been no dispossession-as to entitle the defendant either to proportionate abatement or suspension of rent. It is contended for the appellant that in any event there should not be entire suspension as the rent is not a lump rental, but so much rent per bigha. Unfortunately the pattah has not been proved in this case. In these circumstances we set aside the judgment of the lower appellate Court and direct it to rehear the case after allowing the plaintiff an opportunity of proving the pattah. If on the terms of the pattah, it appears that rent was not a lump rental, but was based on a rate of so much per bigha, he will grant proportionate abatement. If on the other hand it is a lump rental plaintiff's suit will be dismissed. In case the pattah discloses that the rent is so much per unit of measurement the lower appellate Court will determine the extent of the dispossession on the evidence before the Court or such further evidence which the parties may produce.
5. The respondent is entitled to costs of the appeal as the plaintiff did not produce the pattah in proper time.
6. I will now deal with Appeal No. 115 which arises out of a Suit No. 27, as has been previously stated.
7. In this suit plaintiff claims apportionment of. rent for 715 bighas 14 cattas of land at a yearly rental of Rs. 208-14-0. There was originally also a prayer for enhanced rent in respect of 288 bighas and odd but this prayer was withdrawn and nothing more need be said about this.
8. It appears that the tenure was created in 1869 by a patta. Certain quantity of mal lands were let out at a rental of Rs. 208-14-0 and . certain paikan lands were also let out at a rental of Rs. 8-8 the total rental being Rs. 217-6-0.
9. In the year 1906 the Government resumed the paikan lands and settled the same with the zamindar (plaintiff's predecessor). The 'zamindar settled these lands with some ex paiks and third persons.
10. In 1916 plaintiff brought a suit for cent of the lands covered by the patta excepting the paikan lands. The defendant contested the suit and contended that the suit was not maintainable as the paikan lands were not included and the jamas had been split up. It was held in this suit that the disputed paikan jaigir lands were included within the tenures of the plaintiff and as there was partial dispossession by the zamindar there must be suspension of rent and the suit was dismissed and this decision was ultimately upheld by the High Court.
11. In 1918 defendant's predecessor-in-interest Saraswati Deyi, brought a suit in the Court of the Subordinate Judge of Midnapur for declaration of title to the paikan lands as belonging to her on the basis of the patta and. she was entitled to get khas possession against the lessee defendant as the landlords (predecessors of the plaintiff in the present suit) had [no right to grant a lease of the same. The suit was decreed and the present defendants' predecessor's title under the patta was declared and she was entitled to get rent from the lessees of the present plaintiffs. An observation was made in the course of the judgment that the defendants predecessor-in-title was liable to pay additional rent for the paikan land to the zamindar, but the question and the terms and conditions under which defendant was entitled to retain possession of the paikan lands was not decided in that suit and it was said that it might be decided in a suit properly framed for the purpose. This decision was affirmed by the District Judge and ultimately by the High Court in second appeal by Greaves and Mookerjee, JJ. in appeal from appellate Decree No. 2655 of 1922 on 15th June 1926.
12. The present suit was brought on 15th September 1925 during the pendency of the appeal in the High Court from the decision in the suit brought by the defendants' predecessor for her declaration of title to paikan lands.
13. The defence in this suit is that there should be total suspension of rent as it has been decided that the rent is a lump rental for both mal and paikan lands and as dispossession of the paikan lands still continues the suit must fail. It was contended for the defendants that the decision in a previous suit for apportionment of rent operates as res judicata and bars plaintiff's claim. This defence was overruled by the trial Court and plaintiff was awarded a decree for rents for the mal lands.
14. An appeal was taken by the defendant to the Additional District Judge of Midnapur who has reversed the decision of the Subordinate Judge and dismissed plaintiff's suit for rent of the mal lands.
15. Second Appeal No. 115 has consequently been preferred by the plaintiff. The lower appellate Court rested its decision on the plea of res judicata and held that the decision dismissing plaintiff's previous suit for apportionment in Suit No. 29 of 1922 which was upheld by the High Court (see the decision of Greaves and Panton, JJ., dated 16th November 1925 bars plaintiff's claim for apportionment on the principle of res judicata. It has also held that there has been no restoration of possession to the. defendant of the paikan lands. The appellant contends (i) that in view of the result of litigations of 1918 and 1922 circumstances have materially changed so as to preclude the operation of the principle of res judicata in the present case; (ii) that the mere obtaining of the, decree by the defendants against the plaintiff and the lessees of the plaintiff of the land must be considered as restoration of the defendants to such possession of the disputed lands as he is entitled to have and the plaintiff is entitled to have his rent suit decreed.
16. The argument on the first point is put in this way : On 30th June 1926, when the Subordinate Judge passed his decree in this suit, the High Court had finally decided that the defendant would be entitled to recover possession of the paikan lands from the lessees of the plaintiff and this was a circumstance which did not exist when the decision in the previous suit for apportionment was given which is sought to be pleaded as a bar to the present suit. It is said therefore that the plea of res judicata would not be available in the altered circumstances. To this argument the respondent replies by saying that the alteration of circumstances cannot affect the decision in the present suit for apportionment is claimed in respect of rent from April 1922 to April 1926 and that is the time which must be looked to for the purpose of considering whether the bar of res judicata was removed or not.
17. During that period the condition of things remained the same as before and it is said that mere fact of the affirmance of the decree of the lower Courts does not make any change in the circumstance. There seems to be much force in this contention of the respondent. The lower appellate Court finds that there is nothing on the record to show that plaintiff has since the decree for possession in favour of defendant given up possession of the lands dispossessed or that the defendant has got possession of the lands through Court or otherwise. The learned District Judge held in our view rightly that the state of things that existed on 16th November 1925, when Greaves and Panton, JJ., delivered their judgment in the previous apportionment case still continues and that the question of dispossession and suspension of rent was barred by the principle of res judicata. It is contended on behalf of 'the appellant that there are certain observations in the judgment of Greaves and Panton, JJ., which would seem to suggest that after the final decision of the High Court in the title suit brought by the defendant there could not be a consolidated rent in respect of the mal and paikan lands. That may be so but the final decision of the High Court was not given till 15th June 1926 and the whole of the period for which apportioned rent is claimed in the present suit is prior to the final decision in the High Court. In this view we are of opinior that the plea of res judicata cannot be-avoided with reference to the claim in the present suit. We may however observe in passing that a suit for apportionment of rent will lie in respect of rent subsequent to the decision of the High Court, that is for the period subsequent to 15th June 1926. The first ground therefore fails.
18. With regard to the second ground taken it appears clear on the authorities that the mere obtaining of a decree for possession by the tenant is not sufficient to defeat a tenant's right to suspension of entire rent for eviction from a portion of the demised premises. That right continues until effective steps are taken by the landlord to restore possession of the lands to the defendants. Reference may be made in this connexion to a very early decision in the case of Kadambini Dasi v. Kashi Nath Bisivas  13 W.R. 338, where Jackson and Glover, JJ., laid it down that the zamindars were precluded from suing the tenants for rent on account of the period of dispossession even though the tenant had recovered a decree with mesne profits for the said period. This view has also been adopted in recent times as will appear from the decision of Mukerjee and Carnduff,. JJ. in Chandra Kanta v. Ramanath  6 I.C. 478. It is argued however for the appellant that the defendant in order to evade the payment of rent is not seeking to execute the decree against the tenants in actual possession. There is no evidence in the present case that the plaintiff landlord has givers notice to the tenants that rent should henceforth be payable not to him but to the defendant or that the plaintiff has ceased collecting such rents. The plaintiff must take such steps to surrender to the defendant such possession as they are entitled to have as against the tenants by reason of the decree in the title suit brought by the defendant.
19. For the reason given above both the grounds of appeal fail and this appeal must be dismissed with costs.
20. I agree.