B.B. Ghose, J.
1. This is an appeal by the plaintiff and it arises out of a suit for rent for five years and a half. The controversy is whether a portion of the claim is barred by the special rule of limitation provided by Article 2 of the Third Schedule to the Bengal Tenancy Act.
2. The plaintiff's case was that the land in respect of which rent was claimed was a homestead land which was taken from him by the defendants' predecessors by executing a registered kabuliyat and that the incidents of the tenancy were governed by the Transfer of Property Act. The defendants case was that the tenancy was governed by the provisions of the Bengal Tenancy Act and that, therefore, the portion of the claim exceeding the rent for four years was barred by limitation.
3. The trial Court held that the land in question was not taken for agricultural or horticultural purposes. It was held that the defendants were not raiyats so as to bring into operation the provisions of Section 182 of the Bengal Tenancy Act. It was further held that the question whether the tenancy was governed by the Transfer of Property Act or by the Bengal Tenancy Act was res judicata; and that question of res judicata arose out of a suit that was instituted by the plaintiff against the defendants in the year 1918. On these grounds, the plaintiff was allowed a decree in full by the Court of first instance for the amount claimed by him.
4. On appeal by the defendants, the learned District Judge held that the defendants were raiyats. Relying upon several purchas produced by the defendants, the learned Judge came to the conclusion that the predecessors-in-interest of the defendants held other plots in the village as raiyats. The learned Judge further relied upon the fact that in the Record of Rights, the defendants' predecessors were recorded as settled raiyats with reference to the homestead land now in question. Upon that finding and relying upon some cases decided by this Court, the learned Judge held that the present tenancy was governed by the provisions of Section 182 of the Bengal Tenancy Act and that, therefore, a part of the claim was barred by limitation. With regard to the question of res judicata the learned Judge was of opinion that the question in controversy--whether the tenancy was governed by the Bengal Tenancy Act or by the Transfer of Property Act was not in issue in the previous case and that, as that case was uncontested, it could not be said that the issue in this case was directly and substantially in issue in the former suit nor was it alleged by one party and either denied or admitted expressly or impliedly by the other. On this ground, the Court of Appeal below held that the principle of res judicata did not apply. Upon those findings, the learned District Judge modified the decree of the Court of first instance and passed a decree in favour of the plaintiff for rent for the years 1327 to 1330 B.S. with interest at the rate of twelve and a half per cent. per annum.
5. On appeal by the plaintiff to this. Court, there was a difference of opinion between the two learned Judges composing the Division Bench who originally heard the appeal and, on that account, the matter has been referred to us.
6. The questions upon which the learned Judges of the Division Court differed, are (1) whether the finding of the lower Appellate Court that the defendants have by operation of Section 182 of the Bengal Tenancy Act acquired a right of occupancy in the homestead is one that can be assailed in second appeal; and, if so, whether it is correct; and (2) whether, on the facts of this case, the principle of res judicata applies to the finding that the tenancy is governed by the Bengal Tenancy Act.
7. With regard to the first question, it would ordinarily be a question of fact whether the defendants are raiyats or not and, if they are raiyats, it would necessarily follow that the provisions of Section 182 of the Bengal Tenancy Act apply. Whether or not the defendants have acquired a right of occupancy in the homestead is not a question which really arises in this case. The point, however, that is taken on behalf the appellant is that there is no evidence that the defendants were raiytas at the time when the suit was brought and, upon the ground of there being no evidence in support of the finding of the learned District Judge that the provisions of Section 182 of the Bengal Tenancy Act apply to the tenancy in the present case, the learned , Advocate for the appellant has presented the case before us. It, however, appears upon the plaintiff's evidence that the defendants have lands which they themselves cultivate. That would make them raiyats under the Bengal Tenancy Act. That being so, the objection that was sought' to be raised on behalf of the appellant that the findings of the learned Judge of the Court of Appeal below were not sufficient to bring into play Section 182 of the Bengal Tenancy Act falls to the ground. In my opinion, the second question can be answered on the simple ground that no materials have been placed by the plaintiff before the Court on which it can be held that the question as regards the applicability of the Transfer of Property Act or of the Bengal Tenancy Act is res judicata. The only document which he has filed is the decree in Suit No. 515 of 1918 and the only recital in the decree is that in that suit the plaintiff claimed rent for four years and three months from the 1st Magh, 1320, to the 30th Chait, 1324, B.S. and this claim was decreed in the absence of the defendants. Neither the pleadings of the plaintiff nor the judgment have been produced. We do not know if the plaintiff alleged that the tenancy in question was governed by the Transfer of Property Act nor do we know that the decision had turned on that question. It is argued that, if the learned Judge had held that the provisions of the Bengal Tenancy Act applied to this particular tenancy, he would have disallowed the plaintiff's claim in the previous suit for more than four years. But this argument is really speculative. In the absence of the pleadings and the judgment, it is not possible to say what question was raised and what we may consider as having been raised and decided within the meaning of Explanation IV of Section 11, Civil Procedure Code.
8. The answer, therefore, with reference to the first question is that the finding of the learned Judge of the Court of Appeal below that the provisions of Section 182 of the Bengal Tenancy Act apply to the tenancy in question is correct. With regard to the second question referred to us, the answer is that the principle of res judicata does not apply.
9. In these circumstances, the appeal must be dismissed with costs both before us as well as in the Division Court.
George Claus Rankin, C.J.
10. I agree.
Charu Chunder Ghose, J.
11. I agree.