S.K. Ghose, J.
1. This litigation has come to this Court under the following circumstances. There is a tenure held by certain Kalamuris, who gave an ijara to one Surabala and subsequently to the plaintiff. Under this tenure, there is an under-tenure held by the Mahato defendants. The suit lands are in mouza Barasole, which is included within the under-tenure. In 1907 the Record of Rights was finally published and therein the defendants were recorded as under-tenure holders in respect of the lands of mouza Barasole, at a rental of Rupees 118-14-0. As Surabala, the then ijaradar, brought a rent suit in 1909 and obtained decree at the rate of Rs. 118-14-0. In 1910, the present defendants brought title suit-T.S. No. 200 of 1910-in order to have the rent decree set aside. In that suit, there was a compromise by which the parties agreed that the rent for the under-tenure would be Rupees 118-14-0., and that, on account of the jungle land, the defendants would supply 15 cart loads of sal and other kinds of wood for fuel annually. Thereafter the plaintiff brought Rent Suit No. 2274 of 1922, consolidating the claim for rent in respect of the aforesaid cash amount and of the wood.
2. The Court held that the two claims could not be so consolidated and that in respect of the claim for wood, the plaintiff was to seek for remedy in a regular civil suit. Then the plaintiff brought Money Suit No. 383 of 1925, claiming supply of wood for the jungle lands for 1330 and 1331 B.S. In that suit, there was again a compromise, by which it was settled that, instead of wood being supplied as fixed by the compromise decree in Title Suit No. 200 of 1910, the defendants would supply 8 cart loads of sal and 7 cart loads of other kind of wood. The suit was accordingly decreed in terms of this compromise. Then the plaintiff brought the present suit No. 524 of 1926, claiming wood for the years 1332 and 1333 B.S. The defence denied the finding of the solenama as aforesaid and also alleged undue influence. But the denial was not seriously pressed and undue influence was also not proved. The further defence was that the contract to supply wood as aforesaid was illegal and wholly void. The Munsif took this view and held that, by this contract, there was an enhancement of rent contrary to Section 113, Ben. Ten. Act, and it was in the nature of an abwab. In that view, the Munsif dismissed the suit. An appeal was taken to the District Judge. But he held that the suit was based on a contract and as the learned Munsif had Small Cause Court powers up to Rs. 250, the appeal was incompetent. Against that judgment, the plaintiff has filed this second appeal and also an application under Section 115, Civil P.C. Both these matters are before me.
3. The first question is whether the learned Judge in the Court of appeal below is right in holding that the suit is not a suit for rent. If the suit was for rent then the decision of the learned Judge was wrong and the appeal should have been heard by him on its merits. Now, the present claim is based on the compromise decrees made in the afore said suits in 1910 and 1925 respectively. The terms of the first compromise (Ex. 2) show that the tenants bound themselves to supply to their landlords so much sal and other wood annually from the jungle lands of the mouza. It cannot be gainsaid that this is rent even in the restricted sense of Clause. (5), Section 3, Ben. Ten. Act of 1885. Obviously it was something deliverable in kind by the tenants to his landlord on account of the use or occupation of the land held by the tenant. As against this, there are some observations in the judgment (Ex. 4) of the rent appeal arising out of Rent suit No. 2274 of 1922. There it is remarked as follows:
As to 15 cart loads of fuel, I fully agree with the conclusion arrived at by the lower Court. It is clearly not rent, not being amalgamated with rent and payable in kists. If the plaintiff can at all recover it, he must seek his remedy in a regular civil Court and not in a rent Court.
4. It may be that this only decides that the claim on account of the supply of wood is not rent in respect of the same holding, of which the cash rent of Rs. 118-14-0 is payable. But even assuming that there was a clear decision that the claim was not one of rent, it can have no effect as res judicata against the plaintiff because the parties later on came to another compromise (vide Ex. 1) dated 14th September 1925, and this was embodied in the decree of 21st October 1925. By this compromise the tenant bound himself to supply 8 cart loads of sal and 7 cart loads of other kinds of wood annually. It has been held that if a party does not put forward a plea of res judicata, he must be taken to have waived it and to have intentionally invited the Court to decide the case on the merits: see the case of Rajani Kumar Mitra v. Ajamaddin Bhuiya : AIR1929Cal163 .
5. The question that next arises is whether this claim for the supply of wood is lawfully payable or deliverable. The trial Court held that it was not. The learned advocate for the appellant has contended that this position is not tenable in view of the fact that the compromise has merged in the decree. I consider that this argument must prevail, because I feel that I ought to follow the decision in the case of Ishan Chandra v. Moomraj Khan AIR 1926 Cal 1101 which dissented from the case of Sarjugsharan Lal v. Dukhit Mahato (1913) 18 IC 809. The former case has been followed in the case of Krishnalal Sadhu v. Pramila Bala Dasi 0065/1928 : AIR1928Cal518 and in a still later case namely that of Girischandra Singha v. Mahammad Rausan Mian : AIR1933Cal66 . In this last case, it was held that although an enhancement of rent might be in contravention of the provisions of Section 29, Ben. Ten. Act, still, since the compromise by which the enhancement was effected was embodied in a decree, it operated as an estoppel by judgment. But even apart from this question, it seems to me that it cannot be said that the stipulation as to supply of wood which was effected by the compromise was illegal in view of Section 113, Ben. Ten. Act, and was in the nature of an abwab. The rent was enhanced by the Record of Eights in 1907 and the compromise took place in the suit of 1910. But the terms of the compromise show that the status of the tenancy was being raised. The tenancy was a temporary one, but by the compromise, it was stated that the rent would not be enhanced nor would the tenant be liable to pay additional rent for any increase of area. The learned Munsif observed that there was really no occasion for enhancement of rent only three years after the previous enhancement of 1907. But that could not prevent the parties from coming to such a compromise in the suit of 1910. The learned Munsif further observed that the revenue officer might settle a higher rent at the time of the next settlement, as the mouza in question was within Government khas mehal. But that again could not prevent an arrangement from being binding as between the tenant and his under tenant.
6. On this point, see the case of Tayefa Khatun v. Surendrakumar Sen : AIR1932Cal165 . That in these circumstances, Section 29 or Section 113, Ben. Ten. Act, has no application derives support from the case of Rampadarath Singh v. Sohrai Koeri (1919) 4 Pat LJ 667, which I think applies to the facts of the present case, in any case as the learned advocate for the appellant has pointed out, the later compromise of 1925, was certainly more than 15 years after the previous settlement of 1907. This compromise was embodied in a decree and it is upon this decree that the present claim is based. On these grounds I think that it must be held that the present suit is one for recovery of rent. Consequently there was an appeal to the District Judge. I therefore reverse the decision of the lower appellate Court and remand the case for hearing on merits. The present appeal is allowed with costs. No order is necessary on the application.