1. This is an appeal by the plaintiff and arises out of a suit for rent. The plaintiff's case shortly stated was this: that originally there was a jote, in the name of one Ram Lochan Chatterjee bearing a rental of Rs. 40 that the jote was subsequently sub-divided into 3 jotes, one bearing a rental of Rs. 20 representing an 8-annas share of which Satish Chandra Dutta was the tenant; the other jote of a 4-annas share was held by Saroda Nath Dutta at a rental of Rs. 10 and the other jote of 4-annas share bearing a rental of Rs. 10 was held by the predecessor of the present defendant Anadi Prasanna Dutta. The defence of the defendant was that the plaintiff was not the only owner of the land for which this suit for rent had been brought but that the defendant was the owner of the land as zemindar. He further pleaded that there was no relationship of landlord and tenant between the parties.
2. Now, it appears that the Court of first instance gave a decree to the plaintiff and on appeal by the defendant the learned Subordinate Judge has reversed that decree, and dismissed the plaintiff's suit. The present appeal is against the judgment and decree of the learned Subordinate Judge dismissing the suit.
3. Now it appears that the learned Munsif found that the estate of the defendant's' predecessor was in the hand of a lady called Subhadra as executrix to the estate of, her husband and the defendant is the owner of the estate now as a legatee under the Will of his father. The Court of first instance found upon the evidence that Subhadra had been paying rent for the jote before. That in the year 1916 three suits were brought by the plaintiff against the three defendants tenants whom I have described before and that the suit which was brought against Subhadra as the executrix to her husband's estate was decreed ex parte for rent in the year 1916. The learned Munsiff further found that the property in suit-belonged to the plaintiff and gave a decree for the rent. The learned Subordinate Judge went first into the question of title and he was not satisfied that the plaintiff has proved his title. After finding that the learned Subordinate Judge deals with the ex parte decree which the plaintiff obtained against Subhadra, and as to that all that he says is 'It is not, therefore, quite clear whether Subhadra represented the defendant's estate at the time when the ex parte decree in the rent suit was obtained by the plaintiff.' In that view the learned Subordinate Judge gave no effect to the ex parte decree obtained against Subhadra. Now, it appears to us that when it is not disputed that Subhadra was the executrix of her husband's estate and wag in possession of the estate of her husband and was paying rent to the plaintiff in the previous years and the ex parte decree was obtained against her as an executrix the ex parte decree would be prima facie binding upon the defendant. It does not matter whether the decree was ex parte or a contested one. It is nonetheless binding upon the defendant. But the defendant was entitled to show that the decree was not binding upon him on the ground that the estate was not properly represented by Subhadra on the ground that her capacity a3 an executor had come to an end before that suit was brought. The on us of proving that fact which was specially within the knowledge of the defendant was clearly upon him and upon the evidence which he has adduced the learned Subordinate Judge was not able to come to a definite finding to the effect that the estate was not represented by Subhadra. There is no other ground upon which the defendant seeks to get rid of the effect of the ex parte decree against him. That being so we think that the defendant is bound by the ex parte decree. It is clear that the decree did decide the question of the relationship of landlord and tenant between the parties. The defendant has made no attempt to show that the decree was obtained by fraud or that there was any change of circumstances subsequent to the decree which made the decree ineffectual. In the absence of any such finding we think the decree is binding against the defendant.
4. In this view we think the judgment of the learned Subordinate Judge is wrong and that the judgment of the Munsif ought to be restored with costs both of this Court and of the lower Appellate Court.
5. I agree.