In No. 494 of 1908.
1. This is an appeal by the defendants-appellants in a suit for rent. It appears that the plaintiff brought the present suit for rent op 21st April 1908. The Munsif decided that the question of the defendants' liability for rent was res judicita by reason of a decision which had been given in a previous rent suit brought by the plaintiff in 1900. He accordingly decree the suit at the rate of rent decided in the previous suit. The plaintiff appealed to the District Judge and the District Judge decided that the question was not res judicita and remanded the suit to the Munsif under Order XLI, Rule 23, Civil Procedure Code. Against that order, the present appeal is preferred.
2. We are of opinion that the decision of the learned District Judge is not correct. The various rulings cited arid other rulings have been discussed before us on either side. The facts in this case are that, in the previous rent suit, in the Court of first instance the first issue raised was At what rate is the plaintiff entitled to get rent?' The Munsif in that case went into the evidence on either side and decided that neither the rate claimed by the plaintiff nor that admitted by the defendants was the correct rate but gave a decree in the suit at a rate between the two. On appeal to the Subordinate Judge, that officer came to the conclusion. that the plaintiff had entirely failed to prove that rent was due to him at the rate claimed by him and accordingly passed a decree at the admitted rate. Subsequently, there was a title suit which was taken through all the Courts up to this Court. We had before us the judgment of the Court of first instance in which it was distinctly held that the question of the jama payable by the defendants was res judicata. It is conceded that that decision was affirmed both by the lower Appellate Court and by the High Court. It must be a matter for consideration in each case, what was put in issue in the previous rent suit and what was decided. In this case, there can be no question but that the annual race of rent which the plaintiff was entitled to recover from the defendants was the question to be decided in the earliest case. 11 is true that the rent claimed in that suit must have been for a particular year or years: but there is no suggestion that there has been. any Subsequent agreement in this case altering the rate of rent from what the plaintiff himself claimed or from what was decided' in that suit. This case appears to us to be indistinguishable from the case of Hurry Behari Bhagat v. Pargun Ahir 19 C. 656. The remarks of Mr. Justice Pigot in that case apply mutatis mutandis to the present. That case was followed in Bukshi v. Nizamuddi 20 C. 505. Nor do we know that it has ever been dissented from in this Court. It was certainly distinguished in Maharoni Beni Pershad Koeri v. Rai Kumar Chowbey 6 C.W.N.589. But the facts of each case must be considered, and the facts in that case were not the same as those in the present. There are other cases also in which Hurry Behari Bhagat's case 19 C. 656 has been distinguished. Where the defendant pleaded that the area of the land of which he was a tenant was less than what the plaintiff claimed, the fact that he had failed to prove that in one case, was held not to be res judicata against him in another case, when he had had the land measured and was able to give satisfactory evidence of the area. We think that in this case the question of the annual rent was certainly in issue in the former rent suit and there having been no change alleged, that will govern the decision in this case.
3. The appeal must, therefore, be allowed, the order of the learned District Judge set aside, and the decree of the Munsif restored with costs to the defendants both in the lower Appellate Court and in this Court. We assess the hearing fee at two gold mohurs.
4. This decision will govern Miscellaneous Appeal No. 495 of 1909, in which we make a similar order including the order as to costs.