1. This is an appeal by the plaintiffs from a decision of the District Judge of Birbhum modifying a decision of the Munsif, Second Court, of Rampurhat and arises out of a suit for rent for the period 1327-1330 B.S. in respect of ten different holdings described in the schedule to the plaint. The defence set up in regard to four of these jamas described as chha, ja, jha and ena was that there was no relation of landlord and tenant, while as regards the remaining six jamas the plea was taken that the rate of rent had been illegally enhanced in contravention of the provisions of Section 29, Ben. Ten. Act, and that the plaintiff's could only recover rent in respect of them at the admitted rates. The trial Court found that the four jamas were included in the plaintiff's estate and that the relation of landlord and tenant existed. As regards the remaining six jamas it found that, with the exception of two, viz, ka and uma, they did not contravene Section 29, Ben. Ten. Act. As to ka the Munsif found that the original rent was Rs. 5-2-6 per annum, while the rent claimed was Rs. 6-2-17 gandas, and that it therefore contravened Section 29. Similarly as regards uma the finding was that the original rent was Rs. 2-4-0 whereas the rent claimed was Rs. 10-4-6. The Munsif accordingly gave a decree in respect of these two holdings at the admitted rates. On appeal by the defendants the District Judge dismissed the appeal as regards the four jamas chha, ja, jha and ena on the ground that they had not been included, in a Road Cess Return filed by the plaintiffs some years previously and that as a consequence no suit would lie under Section 20, Cess Act (Bengal 9 of 1880).
2. The plaintiffs filed a cross-objection as to jotes ka and uma which was dismissed, the District Judge holding in agreement with the Munsif that a decree-passed in a suit in the year 1890 was a nullity. A decree was therefore given in respect of these two jotes at the rates admitted by the defendants. The plaintiffs have now preferred this second appeal and two points have been taken on their behalf. It is contended, firstly, that the Court of appeal below erred in law in holding that the compromise decree 1890 did not operate as res judicata, and in treating it as a nullity. Secondly it has been urged that under Section 20, Cess Act, the plaintiffs were precluded from realising rent in respect of the four jamas chha, ja, jha and ena. With regard to the first contention we are of opinion that it is well-founded and must prevail. We have no hesitation in holding that the compromise decree of 1890 operates as res judicata, and in support of the view which we take may refer to recent decisions of this Court Ishan Chandra v. Moomraj Khan AIR 1925 Cal 101 and Nawabzada Md. Hossain v. Khana Kazi : AIR1928Cal606 . The District Judge has referred in his judgment to the former of these cases but preferred, as he himself expresses it, to follow an earlier decision reported in Surjeeg Saran Lal v. Dukhit Mahto (1913) 18 I C 809. As this latter case was referred to in the subsequent decision reported in Ishan Chandra v. Moomraj Khan AIR 1925 Cal 101, and as there had in the interval been a Pull Bench decision Hriday Nath Roy v. Ram Chandra Barma AIR 1921 Cal 34, which had shaken the decision in the Surjeeg Saran Lal v. Duhhit Mahto (1913) 18 I C 809, we think that the District Judge should have followed the later decisions. In the case reported in Mahmed Hossein v. Khana Kazi AIR 1928 Cal 606 the Full Bench decision was expressly referred to and was mentioned as a reason for not following the previous decision reported in Surjeeg Saran Lal v. Dukhit Mahto (1913) 18 I C 809. With regard to the second contention the terms of Section 20, Cess Act seem to be explicit. The four jotes chha, ja, jha and ena were not entered in the plaintiff's return under the Cess Act (Ex. A), and, that being so, the plaintiff's were debarred under that section from suing for rent in respect of them. The words in the section are 'suing for, or recovering.' It seems clear therefore that the inclusion of the holdings in question was a condition precedent not only to the recovery of rent but to the institution of a suit for rent so far as they were concerned. What then are the facts? The relevant facts are that a Road Cess Return had been filed by the plaintiff's as far back as 1905 at the time of the last Revaluation and that Return did not include the jamas in question. The plaintiffs were precluded therefore from suing for the rent of these jamas.
3. On behalf of the appellants two contentions have been put forward in this connexion. Firstly, it is argued that, as the point was not taken in the written statement, it ought not to have been entertained, and secondly, it has been urged that in any case the defect, if any, was rectified by the filing of the supplementary return in which these four jamas were included. As regards the first contention it appears to be correct that the point was not raised in the pleadings, but it is clear from a passage in the judgment of the Munsif at p. 3 of the Paper-Book that the point was taken, and it is a point which goes to the root of the matter and affects jurisdiction. The second contention is, it is plain, based upon an erroneous view of the facts. The supplementary cess return was filed before the Collector on 17th March 1926 during the trial of the suit, and the copy of that Return was filed on 20th August 1926 in the lower appellate Court. That copy was never filed in the trial Court, and the Munsif had therefore no knowlege of any such return. A supplementary Return filed not only not before the institution of the suit but after the suit had been disposed of and after an appeal had been filed could not have the effect of getting rid of the disability imposed by Section 20 of the Act. There is no substance therefore in either of these contentions.
4. It was further strenuously argued that it could never have been intended by the legislature to deprive the owner of his right to recover rent by suit, and that even assuming that there was any disability by reason of failure to include the jamas in the return, that disability was removed by the subsequent filing of the supplementary Return. In support of this view an analogy was taken from Section 78, Registration Act, and in conjunction therewith reference was made to the case of Abdul Khan v. Metier Ali (1899) 26 Cal 712. But the two cases are not on the same footing, and there is danger in applying an analogy borrowed from another Act. In the case of the Registration Act the defect is of a formal character, whereas in the case of the Cess Act it is something more than that purpose underlying Section 20 of the latter Act being apparently to impose a disability upon those who evade cess by not making a true return. Moreover, as already stated, the omission was in this instance not made good during the pendency of the suit but in the appellate stage. The result therefore is that the appeal succeeds upon the first contention as regards the effect of the compromise decree, and fails upon the other point. The judgments and decrees of the Courts below are accordingly set aside and in lieu thereof we direct that the plaintiff's claim stand dismissed in respect of the four jotes chha, ja, jha and ena, and be decreed in respect of the remaining six jotes at the rate claimed by the plaintiffs. The appellants will get three-fifths of the costs throughout, and the respondents the remaining two-fifths.
5. I agree with my learned brother in the conclusion he has arrived at on both the points urged before us by the appellants. With regard to the first point taken, namely, that the Courts below erred in law in regarding the compromise decree which was passed in Rent Suit No. 1298 of 1890 as a decree made without jurisdiction and in granting to the plaintiffs a decree not at the rate arrived at by the compromise but at the rate admitted by the defendants, the contention of the appellants seem to be well founded and must prevail. The compromise decree, it is said, contravened the provisions of Section 29, Ben. Ten. Act inasmuch as the rent which was agreed to was in excess of more than 2-annas in the rupee and this was in respect of the holding which was an occupancy-holding carrying a money-rent. In a previous case, namely, in the case of Mohammed Hossein Chowdhury v. Khana Kazi : AIR1928Cal606 it was held by me (Mullick, J. concurring) that a compromise decree passed in contravention of the provisions of Section 29, Ben. Ten. Act cannot be treated in a subsequent suit between the same parties as without jurisdiction and a nullity but is operative and binding until vacated by appropriate proceedings. It was argued on behalf of the respondents that a compromise decree cannot be placed upon a higher footing than a mere agreement of the parties and that same infirmity which attaches to an agreement would attach also to an agreement which has merged in a decree of a Court. That may be conceded. But the question still remains that a compromise decree is to be vacated by appropriate proceedings within the time prescribed under the Limitation Act. The compromise decree is as much binding between the parties as a decree on contest. That was laid down so far back as in the year 1895 in the case of South American and Mexican Co. (1895) 1 Ch. 37. It operates as an estoppel by judgment in the same way as a decree on contest. So long as this compromise decree is not vacated it is binding as estoppel between the parties. That being so, the Courts below were wrong in not decreeing rent in respect of the ka and una jotes at the rate claimed by the plaintiffs on the basis of the compromise decree in the suit of 1890.
6. With regard to the second point taken I agree that the contention of the appellants must fail. Section 20, Cess Act (Act 9 of 1880) operates as a bar to the plaintiffs realising rent in respect of the four jotes chha, ja, jha and ena. It is argued on behalf of the appellants that Section 20 cannot take away a right which exists independently of any provision of the Cess Act. It is said that admittedly the plaintiffs are proprietors of the estate under which the tenancies are situated and that it is his right as a proprietor that entitles them to get rent and Section 20 merely imposes a bar which may be removed at any stage of a proceeding whether in the course of a suit or in the course of an appeal arising from the suit. I am unable to accept this contention for the language of Section 20 suggest that every holder of an estate or tenure in respect of which a return has been made as required by the Cess Act shall be precluded from suing for or recovering any rent whatsoever unless it be proved that the holding or tenure for the rent of which the rent is claimed was created subsequently to the lodging of such return... in cases where the holdings have not been mentioned in the return filed. In this case Road Cess Return which was before the Court was filed in the year 1905 and it is conceded that that return which was filed long prior to the institution of the suit did not contain any mention of the four jamas in question. This point was raised before the Court of first instance which overruled the contention of the defendants on the ground that the omission might have been due to inadvertence. Whatever the reason for the omission might be the strict provisions of Section 20 render it impossible for the plaintiffs to sue for recovery of rent unless it is established! that in the return filed before the institution of the suit these holdings were mentioned. It will not certainly bar the plaintiff's right to recover rent for all time to come if the plaintiffs can place before the Court in any subsequent proceeding Road Cess Return which would include these holdings. But in the present case before the Court of first instance no return other than the return of 1905 was exhibited. Therefore the Court had not before it any document in the nature of Cess Return which contains a mention of these holdings. For these reasons as I have already said, I agree with my learned brother in making the order which he has made.