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Sarjug Prosad NaraIn Singh Vs. Ajodhya Rai and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.863
AppellantSarjug Prosad NaraIn Singh
RespondentAjodhya Rai and ors.
Cases ReferredNekejaie v. Nanda Dulal
Excerpt:
res judicata - bengal tenancy act (viii of 1885), section 106--dismissal of suit under section 103 for default--whether decision res judicata--rent suit--question, what is rent payable annually--decision upon evidence--decision conclusive--civil procedure code (act v of 1908), section 11. - .....of the decree of the settlement officer, and, secondly, what is the effect of the decision in the rent suit.2. the previous suit for rent was instituted in the year 1900 for recovery of arrears of rent for the years 1897 to 1900. the original court decided in favour of the landlord on the 22nd september 1900. upon appeal preferred by the defendants, the appellate court, on the 28th february 1901, decided against the landlord. on the 14th march 1904, that decision was affirmed by this court. meanwhile, during the pendency of the appeal in the court of the subordinate judge, the tenant lad instituted a suit under section 1(6 of the bengal tenancy act, before the revenue authorities. in this suit no evidence was produced on either side. the settlement officer accordingly, on the 9th.....
Judgment:

1. This is an appeal on be-half of the plaintiff in a suit for rent. The controversy between the parties relates to the rate of rent annually payable. This question, the plaintiff-appellant contends, is res judicata by reason of the decision in a prior suit between the parties. The defendants-respondents urge on the other hand that the question is res judicata by reason of the decree of the Settlement Officer in a suit under Section 106 of the Bengal Tenancy Act. The District Judge has held that the decision of the Settlement Officer does not operate as res judicata, whereas the decision in the previous suit for rent is conclusive between the parties. Two questions, therefore, require consideration in this appeal, namely first, what is the effect of the decree of the Settlement Officer, and, secondly, what is the effect of the decision in the rent suit.

2. The previous suit for rent was instituted in the year 1900 for recovery of arrears of rent for the years 1897 to 1900. The original Court decided in favour of the landlord on the 22nd September 1900. Upon appeal preferred by the defendants, the Appellate Court, on the 28th February 1901, decided against the landlord. On the 14th March 1904, that decision was affirmed by this Court. Meanwhile, during the pendency of the appeal in the Court of the Subordinate Judge, the tenant Lad instituted a suit under Section 1(6 of the Bengal Tenancy Act, before the Revenue Authorities. In this suit no evidence was produced on either side. The Settlement Officer accordingly, on the 9th November 1900, dismissed the suit, holding that the only material he had before him was the decision of the first Court in the rent suit against which no evidence had been adduced. Now, it may be conceded, that as provided under Section 107 of the Bengal Tenancy Act, the decision of the Settlement Officer operates as a decree. Bat the question still remains, what was actually decided by him. The dismissal of the suit under Section 106 of the Bengal Tenancy Act for default may bar a second suit of the same scope and character, but clearly it does not operate as res judicata. Chand Kour v. Partab Singh 16 C. 98 : 15 I.A. 156. It is plain that there was no adjudication that the rent was as alleged by the tenant or by the landlord; obviously, therefore, that decree does not bar the determination of the question now in controversy. We may add that the learned Vakil for the appellant placed reliance upon the case of Jogendra Nath Roy v. Krishna Promoda Dassi 35 C. 1013 : 12 C.W.N. 1032 : 8 C.L.J. 322 to show that a suit in the Civil Court for alteration and correction of entries made in the Record-of-Rights published under Chapter X of the Bengal Tenancy Act, is not maintainable. That decision is clearly of no assistance to him and it is worthy of note that the decision in question has not been followed in this Court. Golab Mister v. Kumar Kalanand Singh 12 C.L.J. 107 : 14 C.W.N. 884 : 6 Ind. Cas. 217; Pandab Dowari v. Anand Kishun 12 C.L.J. 195 : 14 C.W.N 897 : 7 Ind. Cas. 102.

3. As regards the effect of the decision in the suit for rent, the answer must depend upon the scope of the question raised in that suit and the adjudication by the Court. Now, it is clear that the question in controversy then was, not the amount of rent payable for the particular years for which rent had been claimed, but the amount of jama annually payable by the tenant to the landlord. This question was decided in favour of the landlord by the Court of first instance, but the Appellate Court decided against him. The Appellate Court expressly found that the plaintiff had failed to prove his allegation while the tenants defendants had established by affirmative evidence that the jamas were as stated by them. Consequently, there was an express adjudication by the Court upon the question now in controversy. In view therefore, of the decisions of this Court in the cases of Rajendra Nath Ghose v. Tarangini Dasi 1 C.L.J. 248 Hat a Chandra Bairagi v. Bepin Behari Das 13 C.L.J. 38 : 6 Ind. Cas. 86 and Panchu Mandal v. Chandra Kant Shaha 14 C.L.J. 220 : 12 Ind. Cas. 9, the decision in the previous suit for rent must be deemed conclusive.

4. On behalf of the appellant, reliance has finally been placed upon the cases of Kali Roy v. Pratap Narain 5 C.L.J. 92 and Sri Narain Singh v. Sundarbuti Kumari 13 C.L.J. 653 : 6 Ind. Cas. 860, where the principle was laid down that, where there is conflict between the decision in a suit for rent and an entry in the Settlement Record, the Court must decide upon the conflicting evidence in the case. This principle, in our opinion, applies only when the decision in the suit for rent does not operate as res judicata. In such a contingency, the entry in the Settlement Record furnishes presumptive evidence and the question arises whether that evidence is rebutted by the decree in the suit for rent. But the case before us is not one of the type of Nekejaie v. Nanda Dulal 1 C.W.N. 711, where it was pointed out that there is no adjudication as to the rate of rent if, upon the failure of the plaintiff to establish his case the Court makes a decree in his favour on the admission of the defendant, not because the defendant has established his case to be true but because the plaintiff, having failed to prove his case, has become entitled to obtain a decree according to the admission of the defendant. In the case before us, there was a clear decision upon the question of the annual rent based upon the evidence adduced by the parties.

5. The result is that the decree of the Court below is affirmed and this appeal dismissed with costs.

6. It is conceded that this judgment will govern the other two Appeals Nos. 217 and 218 of 1910 which are, therefore, also dismissed with costs.


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