1. This appeal arises out of a suit for rent. The plaintiffs sued the defendants for rent of a certain parcel of land for the years 1325 to 1327. The rent claimed was at the rate of Rs. 14-14-6 per annum. The defence was that the area now was 6 pakhis and that there had been diminution of the area of the tenancy and hence the defendants were entitled to an abatement of rent. The first Court gave effect to this contention of the defendants and held that there had been decrease in the area and gave a decree for a proportionate amount of rent.
2. The plaintiffs appealed to the District Court and before the District Court it was argued first that the question of any abatement of rent to be allowed for decrease in the area was res judicata between the parties and secondly that Section 109 of the Bengal Tenancy Act was a bar to this question of abatement of rent being considered in the present rent suit. The lower Appellate Court decided this question of res judicata against the appellant and held that this question as to whether any abatement was allowable to the defendants was not res judicata. But he held that the defence of the defendants that there had been a diminution of area and for that reason they were entitled to abatement of rent was barred by Section 109 of the Bengal Tenancy Act.
3. The defendants have appealed to this Court and in appeal the learned Vakil for the defendants-appellants contend that Section 103 of the Bengal Tenancy Act is not a bar to the present proceedings. The facts so far as this question is concerned are these: During the settlement operation the landlords first of all applied under Section 105 on the 25th October 1915 for an enhancement of rent of the suit land. This application, however, was withdrawn. Defendant No. 2 then applied for an abatement of rent on the ground that there had been a decrease in area. One of the landlords who was impleaded was dead and as the result of this the application was dismissed. When the suit was tried the defendants took the defence that there had been a decrease in area. The learned-Subordinate Judge held that this defence must be deemed to be an application for reduction of rent and hence Section 109 of the Bengal Tenancy Act was a bar to its being raised in any subsequent proceedings. Section 109 provides that 'subject to the provisions of Section 103-A, a Civil Court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted, or proceedings taken under Sections 105 to 103 both inclusive.' I do not think that the defence taken by the defendants in the suit can be considered as either an application or a suit. Therefore Section 100 is no bar to the defendants contending that there had been a decrease in area and hence they were entitled to an abatement of rent even though they had brought forward the same contention in the proceedings under Section 105 of the Bengal Tenancy Act. This point is decided in favour of the appellants.
4. The respondents, however, contend that under Order XLI, Rule 22, they are entitled to support the decree on grounds decided against them, namely, the question of res judicata. This contention of the respondents is, I think, correct and they are entitled to ask the Court to decide whether the question of res judicata has been correctly decided by the lower Appellate Court. The question of res judicata arises in the following way. The plaintiffs brought a suit against the defendants for the rent of 1323 and 1324. This suit was No. 480 of 1918 in the Court of the Munsif of Pinga. The material portion of the judgment of the learned Munsif is as follows: 'The defendant No. 2 contended that defendant No. 1 had no title. That is a matter which need not be looked into in a rent suit. The main defence is that there has been a reduction in a rent. There is no reliable evidence on the point. The defendant does not know the origin of the tenancy; whether there was any measurement at all and what was the standard of measurement. Decrees, Exs. 1 to 3, would show that the plaintiffs are realising rent from the defendants at the rate claimed for many years without any protests. No reduction in area has been shown. The claim is proved and the suit is decreed with costs.' Now, the learned Advocate for the respondents argued that the defendants had raised in this suit the identical question which had been raised and decided against them in the former suit, namely, Suit No. 480 of 1918, namely, as to whether there had been any reduction in area and whether in view of this reduction in area they were entitled to any abatement of rent and this point was decided against the defendants the learned Subordinate Judge finding that no reduction of area had been shown. He contends that the point now raised is identically the same as was raised in Suit No. 480 of 1918 and, therefore, the matter is res judicata. The learned Vakil for the appellants has referred us to the case of Nil Madhub Sarkar v. Brojo Nath Singha 21 C. 236, 10 Ind. Dec. (N.S.) 789 as an authority for the proposition that a previous decision as to the question of the area of a tenancy is not res judicata in a subsequent suit between the parties. In disposing of this case the learned Judges remarked, 'We cannot Say that the questions which the defendant raises in this suit were heard and finally determined in the suit of 1888.' in that view of the matter clearly the question is not res judicata because it had not been heard and finally determined and that is all that that authority decides. On the other hand there is the case of Nobo Doorga Dossee v. Foyzbux Chowdhry 1 C. 202 : 24 W.R. 403 : 1 Ind. Dec. (N.S.) 120. In that case the plaintiff had obtained a patni lease of certain villages from the defendant in 1851 at an annual rent and in 1865 was evicted from a portion of the property: She took no step to obtain abatement; but inasmuch as she did not pay any rent for the year 1871 the defendant brought a suit against the plaintiff for rent of that year. The plaintiff set up the defence that she was entitled to an abatement of Rs. 155 from her rent, the Rs. 155 representing the annual value of the property which she had lost in consequence of the eviction. In that suit it was decided that the amount of abatement she was entitled to was Rs. 42. No appeal was made against that decision. In a suit brought by the plaintiff for the purpose of obtaining a permanent abatement of her rent she claimed the precise measure of abatement, viz, Rs. 155 which she had claimed in the suit brought against her by the defendant. Held, that the question was res judicata it having been raised and decided in the former suit. It seems to me that the principle of this decision applies to the present case. The question was raised in the former suit as to whether there had been any reduction in the area. This suit it may be noted was instituted shortly after the settlement proceedings. It was not alleged, so far as I can ascertain that there had been any change in the area subsequent to the settlement proceedings. The claim for abatement was apparently based on the fact that the settlement record shows an area considerably less than the area for which the tenancy was held. That point was decided by the learned Munsif in the Suit No. 480 of 1918 holding that no reduction of the area had been shown. As far as I can see an identical question was raised in the present suit as to whether there had been any reduction in area. In that view of the matter I think that this question of reduction of the area of the tenancy is res judicata by virtue of the Suit No. 480 of 1918.
5. The result is that the appellants succeed upon one point but they fail on the question of res judicata. The result, therefore is that the appeal must be dismissed with costs.
6. I agree.