1. The plaintiff, having purchased the lands in suit at a sale held in execution of decree for arrears of rent against one Iswar Saha, brought this suit for recovery of rent against the defendants on the basis of a kabuliyat, dated the 2nd Assin 1289 B.S., executed by Ali Mohamed, the father of the defendant No. 1, and two other persons in favour of the said Iswar.
2. The defendants denied the relation of landlord and tenant between them and Iswar.
3. The Court of first instance, referring to certain circumstances stated in its judgment, was of opinion that the kabuliyat might be suspected collusive, but as that was not the defendants' case who denied that Ali Mohamed executed the kabuliyat at all, and finding that the defendants possessed the land on the strength of the kabuliyat and a decree for rent had been obtained by Iswar on the kabuliyat against the defendants, which, although in its opinion did not operate as res judicata, raised some presumption in favour of the plaintiff, came to the conclusion that there was relationship of landlord and tenant between Iswar and the defendants and accordingly gave a decree for rent to the plaintiff against the defendants at the rate stipulated in the kabuliyat. On appeal by the defendants, the lower Appellate Court was of opinion that no rent had been paid under the kabuliyat, dated the 2nd Assin 1289, that the kabuliyat had not been executed and that the defendants had executed a kabuliyat in 1296 B.S. in favour of a rival zemindar and that under these circumstances, it could not agree with the findings of the Munsif and accordingly dismissed the suit.
4. The plaintiff has appealed to this Court and the contention raised on his behalf is that the decree in the Rent Suit of 1897 establishes the kabuliyat and operates as res judicata on the question of relationship of landlord and tenant between Iswar Saha, whose rights have been purchased by the plaintiff, and the defendants.
5. It appears from the judgment in the rent suit that the defendants at first appeared and denied the relation of landlord and tenant. On the date of the hearing of the case, they asked for postponement, and that having been refused did not contest the suit. The plaintiff examined witnesses, produced the registered kabuliyat and a compromise decree obtained against the defendants eight years before that suit and the Court held upon the evidence that the defendants' father had executed and registered the kabuliyat and that defendants had paid rent previously to the plaintiff and accordingly decreed the suit.
6. The decision in that suit, therefore, established the relation of landlord and tenant between the parties. But it is contended on behalf of the respondents that, the decree was an ex parte one and, therefore, could not operate as res judicata. It is said that on the application for postponement having been refused, there was no further appearance on the part of the defendants and that, therefore, the suit must be considered to have been decided ex parte. It does not appear, however, that, after the postponement was refused, the defendants' Pleader withdrew from the case and the decree states that the suit was decided in the presence of the defendants' Pleader. Under the circumstances, the decree cannot be called an ex parte one merely because the defendants did not adduce evidence or submit any argument at the trial. But even if it be held to be an ex parte decree, we are of opinion that it operates as res judicata upon the question of relationship of landlord and tenant between the parties. So far as this question is concerned, a decree obtained ex parte is, in the absence of fraud or irregularity, as binding as a decree in a contested suit. The correctness of this proposition cannot be denied, for instance, in a suit for possession.
7. In a suit for rent, an ex parte decree would operate as res judicata upon the question of relation of landlord and tenant, because a decree for rent can only be passed upon a determination that such a relation does exist. Even if the defendant does not appear at all, the general issue whether such a relation exists must be determined before the Court can pass a decree for rent. If any authority were needed for such a proposition, we might refer to the case of Birchunder Manickya v. Hurrish Chunder Dass 3 C. 383 : 1 C.L.R. 585. It was contended, however, on behalf of the respondents that the case has been overruled by the judgment of the Full Court in Modhusudun Shaha Mundul v. Brae 16 C. 300 and that that case laid down that an ex parte decree for rent cannot operate as res judicata. But in the latter case, the question was whether an ex parte decree in a suit for rent operates as res judicata, as to the rate of rent alleged in the proceedings in the suit. It was contended in that case that the statement in the plaint of an alleged rate of rent would not be an allegation so material that in the absence of proof of it, the plaintiff could not obtain a decree even although he were to show conclusively that the amount of rent claimed in the suit was actually due on the footing of a different rate of rent from that mentioned in the plaint being the true rate, and the Full Court held that the contention was well founded and that if at the hearing of such suit the plaintiff were to prove that the amount claimed by him as rent was actually due although he did not establish the rate named by him in his plaint, he might, nevertheless, be entitled to a decree and that it followed that the statement of the rate of rent in the plaint is not necessarily an allegation so material that the determination of it in the affirmative is involved in the act of the Court in making a decree' and that it was 'not a statement as to which it must be held that an issue within the meaning of Section 13 of the Code of Civil Procedure was raised between the parties so that the defendant is concluded upon it by such decree.'
8. The question decided in that case, therefore, was entirely different from that raised in the present. Pour questions were referred to the Full Court and that Court answered the first three questions, and did not decide the 4th question, viz., whether an ex parte decree for rent operates so as to render any question decided by the decree res judicata in the absence of proof that such decree was executed. The case of Birchunder Manickya v. Hurrish Chunder Dass 3 C. 383 : 1 C.L.R. 585 in so far as it held that an ex parte decree in the absence of fraud or irregularity is as binding for all purposes as a decree in a contested suit, must betaken to have been overruled by the Full Court decision in Modhusudun Shaha Mundul v. Brae 16 C. 300 but the question whether an ex parte decree operates so as to render any question decided by the decree res judicata in the absence of proof that such decree was executed, was left open. The question here is not whether the decree operates as res judicata, as to the rate of rent but as to the relation of landlord and tenant. The decree has not been challenged in this suit on the ground of fraud, collusion or irregularity. In every rent suit the general issues involved in the claim are: (i) Whether there is a relation of landlord and tenant between the parties, and (ii) Are the alleged arrears of rent due and unpaid for the period in suit. So far as these questions are concerned, there is no difference between the decree which is passed ex parte and a decree in a suit in which the defendant appears and contests the claim, and the Civil Procedure Code recognizes no such distinction. Then the question arises whether the ex parte decree loses its conclusive character because the decree is not executed. To hold that we must hold that the binding character of the decree depends upon the accident whether it is executed or not, that the decree is not binding so long as it is not executed, but becomes binding as soon as it is executed. We are not aware of any authority for such a proposition. It is true there are authorities to show that an ex parte decree for rent when executed is evidence as to the rate of rent, but the fact of execution of the decree has bearing only upon the question of the value of the decree as evidence.
9. We are accordingly of opinion that the ex parte decree for rent established the validity of the kubuliyat and the relation of landlord and tenant between Iswar Saha and the defendants for the period covered by the rent suit, and that relation must be presumed to continue so long as the tenant continues to hold the land, until it is proved that it has ceased to exist. It is said that the defendants were not let into possession of the land by Iswar, but were upon the land from before the kabuliyat was executed, and that, therefore, it was open to them to deny the kabuliyat. The genuineness of the kabuliyat is not, however, denied: it is said that it was a collusive document; and the Munsif's observations on the point in the present case are relied on, but the Munsif did not find that it was collusive, but that it might be suspected to be so, and, for reasons already stated, held that the kabuliyat was operative and based his decision upon it. Any objection to the kabuliyat which the defendants now want to urge against it ought to have been raised in the rent suit. The Court in that suit distinctly found upon the evidence that the kabuliyat was executed by the defendant's father and based its judgment upon the kabuliyat. The lower Appellate Court has, no doubt, found that no rent has been paid under the kabuliyat, but if once the relation is established, the mere fault of non-payment of rent is not sufficient to show that the relationship has ceased.
10. We fail to understand what the learned Judge means by saying that the kabuliyat has not been acted upon, because it appears that at least one rent suit, if not two, were brought upon the kabuliyat and decrees were obtained on the basis of the kabuliyat.
11. The kabuliyat said to have been executed in favour of the rival zemindar was produced for the first time in the appellate stage of the case and does not appear to have been proved. It cannot, therefore, affect the plaintiff's case. The alleged rival zemindar is no party to this case. The learned District Judge seems to be of opinion that the plaintiff cannot sue for rent, after having served a notice under Section 167 of the Bengal Tenancy Act, but no objection on the point appears to have been taken by the defendants and if the plaintiff elects to treat the defendants as tenants, the mere fact of his having served a notice under Section 197, does not, in our opinion, stand in the way of his suing the defendants for rent.
12. We are of opinion that the decree in the rent suit operates as res judicata upon the question of the validity of the kabuliyat dated the 2nd Assin 1289 and the relation of landlord and tenant between Iswar Saba and the defendants, and that the plaintiff as the purchaser of the rights of Iswar Saha is entitled to a decree for rent as stated in the kabuliyat. The (decree of the learned District Judge is accordingly reversed and that of the Court of first instance restored. Each party will bear his own costs in this Court and in the lower Appellate Court.