1. Plaintiffs are the appellants in this appeal. The appeal has arisen out of a suit which the plaintiffs instituted for recovery of rent for the years 1331-33, B.S. Rent was claimed at the rate of Rs. 65 with cesses and damages. The contention of the defendant was that he had been dispossessed from a portion of the land and on that account he was entitled to suspension of the entire rent. The Munsiff decreed the suit overruling this contention of the defendant and gave him a decree though not for the entire amount but making certain deductions on account of the cesses that were claimed. On appeal preferred by the defendant the Subordinate Judge sat aside the trial Court's decree and allowed the plaintiffs a decree for rent at a rate to be ascertained by comparison of the kabuliyat which formed the basis of the tenancy with the settlement records which, according to the learned Subordinate Judge, showed that the defendant was in possession of lands less than what was covered by the kabuliyat.
2. The facts necessary to be stated are the following: The tenancy was created by a kabuliyat dated 1879. In 1802 there was a decree for rent obtained by the plaintiffs against the then tenant and in execution of that decree the holding was put up to sale and purchased by the defendant. The kabuliyat purported to create a tenancy in respect of three annas share of certain lands included in certain defined boundaries. After the defendant's purchase there was a suit for rent instituted by the plaintiffs against him for the years 1309-12 and it appears that in that suit a decree was obtained by the plaintiffs for rent at the rate mentioned in the kabuliyat. It would appear that at that time it was not contended on behalf of the defendant that he was in possession of the entire lands of the tenancy. The present suit was instituted, as already stated, for the rent of the years 1331-33. The Munsiff held that there was no evidence to show that there was any dispossession by the plaintiffs of the lands of the tenancy since the decree which the plaintiffs obtained against the defendant for the years 1309-12, and he was inclined to take the view that the defendant was in possession of the entire quantity of lands. The Subordinate Judge on the other hand has, on a reference to the settlement records and the evidence which the defendant as well as the son of the giver of the kabuliyat gave in this case, came to the conclusion that the defendant in fact got much less land than the three annas of the lands included within the kabuliyat boundaries and that the remaining lands which the defendant ought to have got were recorded in the settlement records as khas lands of the plaintiffs and their cosharers in superior taluki right.
3. His finding amounts to this: that in point of fact the defendant is not in possession of the land which he ought to be in possession of under the kabuliyat. The Subordinate Judge appears to have believed that from the very beginning, when the defendant came to be in possession, he could not get all the lands of the kabuliyat. In those circumstances the only point of law which may be urged and indeed has been urged by Dr. Mukerji on behalf of the appellants, is that the defendant should be held to be precluded by reason of the doctrine of constructive res judicata from pleading that he was not in possession of the entire lands of the tenancy and that he was not therefore liable to pay the entire rent, by reason of the fact that in the previous suit for rent for the years 1309-12 this defence was not taken, whereas it might and ought to have been taken within the meaning of Section 11 of the Code. I am of opinion that this contention ought not to be allowed to prevail. No doubt it was quite open to the defendant to take this plea in defence if he so chose and therefore it was a defence which might have been taken in suit. But I do not think it can be said that it ought to have been taken. I am not prepared to hold that in a simple suit for rent, where the tenant puts forward a plea of dispossession and allows a decree to be passed for the entire rent, it should be held that he was bound to take this plea of dispossession and since he has not done so it should be treated as barred by the doctrine of constructive res judicata.
4. Upon the facts which the learned Subordinate Judge has found, namely that the defendant was not in possession of the entire lands of the tenancy and that the remaining lands are in khas possession of the plaintiffs and their cosharers, the decree which the learned Subordinate Judge has made is, in my opinion, correct. The appeal accordingly fails and must be dismissed with costs.