1. In the suit out of which this appeal arises the plaintiff sued for the recovery of produce rent of a certain parcel of land. The plea of the defendants was that the land no doubt originally belonged to the plaintiff but that by a partition, between the plaintiff and his co-sharers a portion of this land had fallen to a third party and that, therefore, he was not obliged to pay the whole rent claimed. The Trial Court held that this question as to portion of the land being held by a third party was res judicata between the plaintiff and the defendants and decreed the plaintiff's suit in full. The defendants appealed to the District Court and that Court held that there was not sufficient material on the record to identify the land in the present suit with the land in former suit and he remanded the case for a re-trial. The Trial Court accepted the defence and decreed the suit in part. The plaintiff once more appealed to the District Court. The District Court held that the question as to whether the portion of land for which rent was claimed belonged to a third party was res judicata, between the parties to the suit and he, therefore, allowed the appeal holding that the defendants were tenants of the plaintiff in regard to the whole land in suit. The effect of the finding is to decree the whole of the plaintiff's suit. The defendants have appealed to this Court.
2. A preliminary point has been raised that Section 153 of the Bengal Tenancy Act is a bar to an appeal to this Court. As the appeal fails on the merits it is unnecessary to decide this point. The appellants have raised three points in appeal. First of all, it is urged that the lower Appellate Court was in error in holding that the defence was barred by the rule of res judicata. Secondly, it was urged that the first Court of Appeal having held that the plea of res judicata was not available to the plaintiff it was not open to the Court of Appeal when the case was taken up again on appeal to have entertained this plea of res judicata; and, lastly, it was urged that the lower Appellate Court erred in admitting in evidence certain additional evidence, namely, the plaint which has been marked Ex. (6) without giving its reasons for admitting it in evidence.
3. With regard to the first contention the appellants rely on the case of Nilmadhub Sarkar v. Brojo Nath Singha 21 C. 236 : 10 Ind. Dec. (N.S.) 789. The facts of that case, however, are different. It is impossible to lay down any hard and fast rule as to whether a previous decision in a rent suit does or does not operate as res judicata. In the case, we have just referred to, the learned Judges remarked that the case might have been different if the Court had in the previous suit definitely determined the area of the land in the defendants' possession and the annual rent pay able for the same. It might then be said that the determination was general and not limited to the particular years for which the rent was claimed. Now in the present case the point on which it is sought to establish res judicata between the parties was whether a certain portion of the land did or did not belong to a third party. This point was decided in the former suit and it cannot be said that this is a question which is limited to the particular year for which rent is claimed and, therefore, this case is distinguishable from the case relied upon by the learned Vakil for the appellants. We think that the judgment in the former rent suit does operate as res judicata between the parties. The parties are the same, the areas of the lands are the same and the defence is the same, namely, a third party holding certain portion of the whole land.
4. The next point raised is that when the case came up for the first time in appeal the Appellate Court held that the previous judgment could not operate as res judicata. As a matter of fact the Appellate Court in that appeal did not decide that point at all. What it did decide was that there was not sufficient material on the record to show whether or no the question was or was not res judicata and that being so, it cannot be said that it decided that it was res judicata and it was, therefore, open to the Judge when the case came up to him for the second time to decide that this question was res judicata between the parties.
5. The last point raised by the learned Vakil for the appellants is that the lower Appellate Court admitted certain additional evidence without giving any reason for it and without giving the parties an opportunity to argue it. It will appear from the order-sheet that this additional evidence which is the plaint in the former rent suit was put in by the plaintiff on the 23th November. No doubt the case had already been argued in part but the order-sheet shows that after this document was put in further argument was heard. The document was exhibited on the 1st December. But it had been put in evidence on the 28th November during the course of the argument. The list shows that it was admitted without objection. No doubt the learned Judge who admitted this document in evidence neglected to state his reasons for admitting it. That, however, would not render the evidence inadmissible. It does not appear that the parties were in any way prejudiced. They did not object at the time of the admission of the evidence that they had no opportunity to argue on it. All the points are, therefore, decided against the appellants.
6. The result is that this appeal fails and is dismissed with costs.
William Ewart Greaves, J.
7. I agree.