1. This appeal arises out of a suit for rent.
2. The plaintiff sued for the rent for the years 1324 to 1327. The suit was brought against three persons a father and his two sons. The holding originally belonged to the defendant No. 2. It was sold for arrears of rent and was purchased by his two sons defendants Nos. 1 and 3. The case of the plaintiff was that the rent of the holding was Rs. 8 per annum. The case of the defendants was that the rent of the holding was Rs. 6-11-0 per annum.
3. The first Court held that the rate of rent was as claimed by the plaintiff and decreed the suit accordingly.
4. On appeal to the District Court the learned Subordinate Judge held that the rent was as contended by the defendant.
5. Hence the appeal to this Court.
6. The first contention of the appellant is that the learned Judge erred in law in saying that the decision in the suit of 1911 concluded the plaintiff as to the rate of rent in 1911. He contended that this decree showed at the most rate at which the rent was decreed but did not necessarily show what was the rate of rent.
7. It is necessary to quote at length what the learned Judge actually said. He states as follows: 'It seems that this decree (Ex. A) was in the presence of both the parties and although the plaintiff had claimed rent at the rate now claimed it was decreed at the rate of Rs. 6 odd as alleged by the defendant so that the plaintiff is concluded by this decree and there is no escape from the finding that the rental of the present holding was Rs. 6 odd as alleged by the defendant at least on the date of the previous suit.'
8. The argument that is put forward by the appellant is that this decree does not show what was the rate of rent of the holding. It only shows what was the rate at which the suit was decreed. The appellant in support of his contention has referred to the case of Maharani Beni Pershad Koeri v. Raj Kumar Chowbey 6 C.W.N. 589. As far as I can see all that this case decides is that a decision in a previous rent suit as to the amount of rent payable does not operate as res judicata in a suit for the rent of subsequent years. It is obviously unnecessary to consider this decision, because it is quite clear that the Court has not treated this decision in 1911 as rendering the question of the rate of rent res judicata between the parties. If he had done so it is quite obvious that he would not have discussed the evidence. Moreover, he has made it quite plain that he only considered it as evidence of the rent at the time when it was made for he says so. It has been contended that the decree of 1911 does not show what was the rent found but only shows what was the rate that was decreed for the purposes of that suit.
9. We have not got the judgment in the case but one thing is quite clear, viz., that the parties have all along considered and it has not been disputed even in the grounds of appeal to this Court that this decree determined that the rate of rent was Rs. 6-11-0. Both Courts have held that this decree showed that the rate of rent in 1911 was as claimed by the defendant.
10. There is further point which is fatal to this argument of the appellant, viz., that this point has not been taken in the ground of appeal to this Court. This alone by itself would be sufficient to dispose of the point. I am of opinion that the lower Courts were right in holding that this decree did determine the rate of rent in 1911.
11. The next point that has been argued is that the Judge was not justified in finding that the rent at the rate claimed could not be decreed because it contravened the provisions of Section 29, Bengal Tenancy Act, as there was no finding that he holding was a raiyati holding. It was the allegation the plaintiff in his plaint that the holding was a raiyati holding and this was never traversed by the defendant and it is quite clear that the suit was fought on this basis. But, as a matter of fact, it was no one's case that there had been any contravention of Section 29, Bengal Tenancy Act, and the Judge seems to have made a hypothetical case and held that if the rent was 6-11-0 in 1911 the plaintiff could not have enhanced it to Rs. 8. But as I have pointed out it was no one's case that there had been any enhancement of the rent. It was the case of one party that the rent was Rs. 6-11-0 and that it had been always so and the case of the other party that the rent was Rs. 8 and had always been so. It was never the case of any body that the rent had once been Rs. 6-1-0 and had been enhanced to Rs. 8. The Judge does not appear to have decided the case on this point. He merely argues that if it was a case of enhancement then such enhancement was barred by the provisions of Section 29, Bengal Tenancy Act. But it clearly is not a case of enhancement.
12. My learned brother would remand the case to the lower Court to be dealt within the view of the remarks in his judgment.
13. The result is that the appeal fails and is dismissed with costs.
14. I regret I am unable to agree in the order which my learned brother proposes to pass in this appeal.
15. The appeal arises out of a suit for rent. The plaintiffs claimed rent for the years 1324 to 1327 at the rate of Rs. 8-6 ans. 10g. 2ks. per year. The defendants alleged that the rent was Rs. 6-11 ans. 12g. per year. The Munsif decreed the suit at the rate claimed by the plaintiffs. On appeal preferred by the defendants the Subordinate Judge decreed the suit at the rate admitted by them and apportioned their liabilities by decreeing the suit at that rate as against the defendant No. 2 for the year 1324 and the first half of 1325, and as against the defendants Nos. 1 and 3 for the rest of the period. Both the Courts gave the defendants credit for a small payment made for the year 1324. The plaintiffs have appealed.
16. The whole question in this appeal is as to what is the rate at which the suit should be decreed. The plaintiffs in support of their case as to the rate of rent relied upon a sale-certificate (Ex. 3) dated the 3rd January 1918 under which the defendants Nos. 1 and 3 purchased the holding when it was sold at the instance of the plaintiffs in execution of a decree for rent against the defendant No. 2, and also certain counter-foils (sic) (Exs. 1 and 2) which related as period before the said auction-sale. The defendants relied upon a rent decree (Ex. A) for rent for the years 1314 to 1317 which was obtained in 1911.
17. (sic) understand the judgment of the learned Subordinate Judge he has dealt with the matter in the way. He was of opinion that it had been proved that at the date of the suit which culminated in the decree, Ex. A the rented the holding was (sic) and odd as alleged on behalf of the defendants. Having arrived, at that finding he held that that was the rate at which the suit should be decreed : because firstly it was not the plaintiff's case that the rent was ever enhanced. Secondly even if the plaintiffs realised at an enhanced rate as was attempted to be proved by the sale-certificate (Ex. 3) and the counterfoils, Exs. 1, and 2, such enhancement was illegal in view, of the provisions of Section 29 of the Bengal Tenancy Act, and thirdly, the rental mentioned in the sale certificate would not estop the defendants from contending that it was really something else. Once it is assumed that the rate of rent was Rs. 6 and odd at the date of the suit which resulted in the decree, Ex. A, the three reasons given by the learned Judge which are all cogent and substantial are sufficient for decreeing the present suit at that rate. I am however clearly of opinion that this assumption, should not be made.
18. The learned Judge, no doubt, has found, that the rate at the date of the earlier suit was Rs. 6 and odd, and this, no doubt, is a finding offset : but in arriving at this finding, to quote the words of the Judicial Committee in the judgment delivered by Sir Arthur Wilson in the case of Haidar Khan v. Secretary of State for India Ind. Cas. 182 : 36 C. 1 : 8 C.L.J. 436 : 12 C.W.N. 1095 : 35 I.A. 195 : 4 M.L.T. 234: 10 Bom. L.R. 1101 : P.L.R. 1908 p. 110 n, 3 O.C. 1 : 18 M.L.J. 549 (P.C.) 'at every point in the process of reasoning consideration of law have to be regarded.' The learned Judge's reasoning in this respect is this:---'Against the evidence of the plaintiff the defendants have filed the certified copy of a previous rent decree between the plaintiffs and the defendant No. 2 obtained for the years 1314 to 1317 B. S. It seems that this decree (Ex. A) was in the presence of both the parties and although the plaintiff has claimed rent at the rate now claimed it was decreed at the rate of Rs. 6 odd as alleged by the defendant, so the plaintiff is concluded by this decree and there is no escape from the finding that the rental of the present holding was Rs. 6 odd as alleged by the defendant at least on the date of the previous suit.' The learned Judge thus he Id that this decree was conclusive evidence as between the parties as to the rate of rent at the date of that suit. In this I think the learned Judge was entirely wrong.
19. Sections 40 to 43 of the Evidence Act deal with admissibility of judgments orders or decrees. The decree in question does not come under Sections 41 or 42 and the provisions of these sections and the conclusive character or otherwise of the proof afforded by a decree coming under those sections need not be considered. It may come under Sections 40 or 43. Under Section 40 the existence of this decree is a relevant fact when the question is whether in view of this decree the Court ought to take cognisance of the suit or to hold the trial. This means that it is relevant on the question as to whether it operates as res judicata under Section 11 of the C. P. C. or some other general principle of finality of judicial decisions which according to the recent decisions of the Judicial Committee must be taken to apply to this country although not incorporated in that section. Under Section 43 it will be admissible only if its existence is a fact in issue or if it is admissible under some other provision of the Act. Section 43 would enable the defendants to rely upon the decree as evidence of a transaction in which rent was claimed at a particular rate, and decreed at a lesser rate : and that is one of the legitimate uses that may be made of the decree under that section. Under Section 40 it would be admissible for proving that the claim for certain years was decreed and so no suit would lie for the rent for that period, and it would also conclude the trial of the question as to what was the rate of rent at the date of that suit if the decree showed that that question was heard and finally decided in that suit. It is only in the event of the decree showing the last mentioned fact that the learned Judge's remark 'that the plaintiff is concluded by this decree and there is no escape from the finding that the rental of the present holding was Rs. 6 odd as alleged by the defendant at least on the date of the present suit' would be justified. To speak of it as conclusive evidence is to say something which the law does not contemplate : to say that the plaintiff is concluded by it is correct only if it is meant that the question cannot be tried again and if the law debars the trial of that question. The decree only states that the rent for the years involved in that suit was decreed at a particular rate per year. This does not mean that the issue or question as to what was the yearly rental was tried and determined in the suit.
20. The distinction referred to above has been clearly pointed out, and the circumstances as to when a rent-decree operates as res judicata have been fully explained, in a series of decisions of this Court amongst which reference may be made to the cases of Hurry Behari Bhagat v. Parun Ahir 19 C. 656 : 9 Ind. Dec. (N.S.) 880; Bakshi v. Nizamuddi 20 C. 505 : 10 Ind. Dec. (N. S.) 343, and Nil Madhub Sarkar v. Brojo Nath Singh 21 C. 236 : 10 Ind. Dec. (N. S.) 789, I see no point in the distinction that has been sought to be drawn by urging that these authorities relate to the rule of res judicata as barring the trial of the question of the rental for subsequent years and that in the present case the question of rental at the date of the earlier suit is what has been said to have been concluded : because, in my opinion, in those cases as well as here the fundamental question is whether the rate of rental for the years in the previous suit was determined or not if it has been so determined the plaintiffs can only succeed in the present suit by proving that the area and rent has since altered which however is not their case. If it has not been so determined then as laid down in the case of Maharani Beni Pershad Koeri v. Raj Kumar Chowbey 6 C.W.N. 589 it would be for the Court to consider the circumstances and events both prior and subsequent to the former suit to enable it to judge for itself the rentals rightly due to the plaintiffs for the years in suit. The error of the learned Judge, in my judgment, lay in treating the decree as concluding or debarring the determination of the question of the rental of the holding at the date of the earlier suit. It is possible that the judgment in that suit if produced would have shown that the question of rental was raised and determined, but in the absence of the judgment we can hardly make an assumption to that effect. A series of decisions of the Judicial Committee lend support to the proposition that whether an issue has been decided or not in such a way as to give it the finality which would conclude the parties to raise it again is to be determined by a reference to the pleadings, the issues and the judgment and that the decree may also be referred to but it is not enough as it is the judgment in which the issues are recorded : Ram Bahadur Singh v. Lucho Koer 12 I.A. 23 : R. C. 301 : 4 Sar P.C.J. 602 : 9 Ind. Jur. 202 : 5 Ind. Dec. (n. s.) 960 (P.C.); Kali Krishna Tagare v. Secretary of State for India 15 I.A 186 : 16 C. 173 : 12 Ind. Jur. 413 : 5 Sar. P.C.J. 237 : 8 Ind. Dec. (n. s.) 115 (P.C.); Amritestvari Debi v. Secretary of State for India 24 I.A. 33 : 24 C. 504 : 1. C.W.N. 249 : 7 Sar. P.C.J. 101 : 12 Ind. Dec. (n. s.) 1003 (P.C) and Kurrutulain Bahadur v. Nuzbat-ud-dowla Abbas Hossein Khan 33 I.A. 214 : 33 C. 116 : 9 C.W.N. 938 : 1 C.L.J. 594 : 2 A.L.J. 753 : 15 M.L.J. 336 : 7 Bom. L.R. 876 : 8 Sar. P.C J. 839 (P.C).
21. I do not at all feel pressed by the argument that this ground has not been specifically taken in the appellant's memorandum of appeal. I think it may be gathered from one of the grounds mentioned there : but even if it be conceded that it is not there I am not prepared to shut the appellant out from arguing what seems to me to be a pure question of law and a consideration of which does not depend upon any investigation of facts. I could have understood the respondents' grievance if it was said that they were taken by surprise. No adjournment was asked for by them and they have argued the matter at length.
22. I am, therefore, of opinion that the decree of the learned Subordinate Judge passed on appeal should be set aside and the case sent back to his Court to be dealt with in view of the remarks made above. Costs to abide the result.