1. This appeal arises out of a suit for rent of a dar mourashi tenure, the rent being claimed at Rs. 238 annas 12 a year.
2. The main defense was that there was dispossession of a portion of the tenancy and that, therefore, there should be a suspension of the rent.
3. It appears that a dar mourashi lease was executed by the plaintiff's father in favour of the father of the defendant No. 1 on the 15th Jane 1865. The lease comprised six properties, one of them being a jama, of Rs. 16 and described as Hat Salika appertaining to Gjurmani's jama. The plaintiff's father was the putnidar of Lot Harishpur within which Hat Salika was included. On the same day, 15th June 1865, the plaintiff's father gave a dar-paint lease in respect of Harishpur to the father of the defendant No. 1. This darpatni right, however, was re-conveyed to the plaintiff on the 9th August 1905. On the 7th April 1909, the darmaurashi interest was conveyed by the defendant No. 1 to the defendants Nos. 2 and 3.
4. It appears that on the 3rd June 1908, that is, after the re-transfer of the darpatni right to the plaintiff's father, the defendant No. 1 instituted a suit (No. 846 of 1908) against the plaintiff for recovery of Hat Salika. It was dismissed for default on the 25th November 1908. The matter came up to the High Court and ultimately the Rule was discharged on the 27th July 1909. Then it appears that on the 31st March 1909 a rent suit was instituted in the Munsif's Court for rent of the darmaurashi against the defendant No. 1 for the years 1313 to 1315. It is unnecessary to refer to the proceedings in that suit at its various stages. Ultimately the District Judge gave a decree for the full rent claimed by the plaintiff, overruling the objection of the defendant with respect to the jama of Rs. 16 on account of Hat Salika.
5. It appears that the plaint in the rent suit instituted on the 31st Marsh 1909 was returned for presentation to another Munsif and was re filed on the 14th April 1909. The defendants Nos. 2 and 3 purchased the darmaurashi in the interval, namely, on the 7th April 1909. They were no parties to that rent suit.
6. In the present suit the defendants Nos. 2 and 3 set up the plea that the plaintiff was not entitled to get rent in respect of Hat Salika and that there should be a suspension of the entire rent. The Courts below have given a decree for rent at the rate claimed after deducting Rs. 16, the jama of Hat Salika.
7. The plaintiff has appealed to this Court.
8. The first contention raised on behalf of the appellant is that the defendants had, after the conveyance dated the 9th August 1905, no right to Hat Salika.
9. Now, as stated above, Hat Salika is situated within Lot Harishpur, and was dealt with separately along with come other Hats in the darmaurashi settlement. It was treated as a property separate from the darpatni and we agree with the Court below in holding that although the usual words 'Hat', etc., appear both in the darpatni lease and in the deed of conveyance of the darpatni, they did not include Hat Salika, and that by the conveyance of 9th August 1905 the plaintiff did not acquire any right which had not been granted to the defendants' father by the darpatni lease. We think that the Courts below have properly construed the document.
10. The next contention is that the suit of defendant No. 1 for possession of Hat Salika having been dismissed for default on the 25th November 1908, he was precluded by the provision of Order IX, rule 9, from bringing another suit for possession of Hat Salika and that, therefore, his right to claim abatement of rent is also barred.
11. There is no doubt that the defendant No. 1 or defendants Nos. 2 and 3 claiming under him are not entitled to bring a fresh suit in respect of the same cause of action, in other words, they cannot sue for possession of Hat Salika. But it does not follow that because they cannot maintain a suit for possession of Hat Salika, therefore, they are not entitled to claim abatement of rent, a claim which is based upon the result of the dispossession by the plaintiff.
12. As pointed out by the Judicial Committee in Chand Kour v. Partab Singh 16 C. 98 : 15 I.A. 156 : 5 Sar. P.C.J. 243 : 12 Ind. Jur. 331 : 8 Ind. Dec. (N.S.) 65, the dismissal of a suit in terms of Section 102, Civil Procedure Code is not intended to operate in favour of the defendant as res judicata. When read with Section 103, it precludes a fresh suit in respect of the same cause of action, referring, irrespectively of the defence or the relief prayed, entirely to the grounds, or alleged media, on which the plaintiff asks the Court to decide in his favour.'
13. It has been contended that the cause of action in that case was not merely dispossession but the right claimed by the defendant No. 1 and infraction of that right.
14. But the present defence really arises upon the result of the previous suit and the mere fact that the defendant is precluded from bringing a suit for possession does not prevent him from setting op the claim for abatement of rent. For instance if the defendant had been oat of possession or 12 years and his right to get a decree for possession had been barred, he would still have been entitled to claim abatement of rent.
15. Then it is contended that the judgment in the rent suit operates as res judicata. But the decree upon which reliance is placed was passed in a suit decided by the Munsif's Court and the present suit had been instituted in the Subordinate Judge's Court, The decision in the Munsif's Court, therefore, does not operate as res judicata.
16. It is next contended that the plaintiff could have brought a separate suit for rent for each of the 4 years claimed; the suit would have been cognizable by the Munsif. That may be so, but it was the plaintiff who brought one suit for rent for the 4 years and other amounts which exceeded the pecuniary jurisdiction of the' Munsif.
17. The last contention is that the Courts below ought to have come to a definite finding whether the land on which Hat Salika now stands and of which the plaintiff is in possession did form part of Gourmani's jama. It is said that Hat Silika might have been formerly held on Gourmani's jama and that site might have been abandoned.
18. But in the first place there was no suggestion of it in the Court of first instance and apart from that, it was admitted that Hat Salika was in the jama in suit. The learned Subordinate Judge says: ' The plaintiffs admitted that they remained in possession of Hat Salika within (he present jama but they contended that the defendant No, 1 sold Hat Salika to the plaintiff together with Lot Harishpur.' The case of the plaintiff, therefore, was not that there was any dispute as to the identity of Hat Salika but that Hat Salika had passed to the plaintiff under the conveyance of 1905.
19. We think, therefore, that the appeal must be dismissed with costs.