1. This is an appeal by the defendant in a suit for ejectment for assessment of rent and premium, for recovery of arrears, and for incidentall reliefs.
2. On the 22nd June, 1899, the plaintiff granted a kayami maurasi mokarari pattah in respect of Chakdari jungle lands in the Sunderbuns to one Syamacharan Das. On the 12th January 1902, the representatives; of the lessee conveyed their interest to the defendant. The case for the plaintiff is that, whereas under the lease, the defendant is entitled to 2500 bighas of land, he has managed to obtain possession of 2729 bighas 5 cottahs and 11 chattaks. The plaintiff, consequently, seeks to recover possession of 229 bighas 5 cottahs and 11 chattaks. The plaintiff, claims, in the alternative, that rent and premium maybe settled on all land in excess of 2000 bighas, which was the original quantity mentioned in the lease and formed the basis of calculation of the sum payable by the lessee. The plaintiff further prays for recovery of arrears. The Subordinate Judge has dismissed the claim for ejectment. He has held that the plaintiff is entitled to rent and premium on 500 bighas in excess of 2000 bighas at the rates mentioned in the lease, namely, at Re. 1 per bigha. He has further held that the plaintiff is entitled to have-rent assessed at Re. 1-8 a bigha and premium at Rs. 5 a bigha on all lands in excess of 250O bighas. He has finally decreed arrears at the rates mentioned from 1322 B.S. to 1324 B.S. The decree has satisfied neither party. The defendant has appealed on three grounds, namely, first, that in the determination of the excess area assessable, allowance should have been made for a tow path : secondly, that rent and premium should have been assessed throughout at the rates mentioned in the lease and thirdly, that arrears should not have been decreed for any period antecedent to the institution of the suit. The plaintiff has preferred cross-objections and attacked the decree on two grounds, namely, first, that the plaintiff was entitled to a decree for ejectment with regard to all lands in excess of 2,500 bighas; and, secondly, that rent and premium should have been assessed at higher rates than those fixed by the Subordinate Judge.
3. he three questions which thus emerge for consideration, are, first, is the plaintiff entitled to a decree for ejectment in respect of all lands in excess of 2,500 bighas; secondly, at what rate should rent and premium be assessed and in respect of what excess lands; thirdly, is the plaintiff entitled to a decree for arrears antecedent to the suit.
4. As regards the first question, the decision must rest primarily on the terms of the lease of the 22nd June, 1899. The lease purported to be a grant of approximately 2,000 bighas of jungle lands within boundaries defined in the schedule. Three of these boundaries, namely, the northern, the western and the southern were definite. The fourth boundary, that is, the boundary towards the east, was indefinite, inasmuch as it was stated to be 'jungle lands held by me (the grantor) in khas.' The rent was, as usual, made progressive. Seven percent, of the land was made perpetually rent free on account of reclamation and collection charges. The rent on the remainder was assessed at a maximum of Re. 1 per bigha. During the first three years, however, no rent was to be levied. In the fourth year, only one-third of the maximum was to be paid, while, in the fifth year, two-thirds was to be paid; the full rent was to come into operation from the sixth year. The lease further provided that on the expiry of the rent-free period, the landlord would cause a measurement to be made with a chain of 80 cubits of 18 inches a cubit, and that, after deduction of seven per cent, from the additional lands, the remainder would be assessed at the rate fixed in the document, namely, premium at one rupee per bigha, and rent at one rupee per bigha. The lease next provided that if the measurement should disclose a deficiency in the area, the tenant would be entitled to a proportional abatement. Then followed the following provision:
Be it further stated that out of extensive jungle lands, this pattah is granted to you in respect of 2,000 bighas of lands as per boundaries given below. You shall be competent to include in your share approximately that quantity of land or an additional quantity of 500 bighas at most, and you shall pay rent and premium on account of the additional quantity of lands at the rate fixed. But if you get more lands enclosed over and above the same, then I shall be competent to take khas possession thereof, after measurement, and you shall not be competent to claim any compensation for taking the same into my khas possession.
5. The measurement here contemplated is that previously mentioned, namely, the measurement to take place at the end of the rent-free period, that is, in the year 1308 (1901-2) or thereafter. The present suit was not instituted till the 19th November, 1918, and there is considerable force in the contention of the defendant that the option vested in the plaintiff under the lease of the 22nd June, 1899, to eject the tenant from land in excess of 2,500 bighas, could not have been intended to be capable of exercise after the lapse of an indefinite period of time. Apart from this, we are of opinion that the plaintiff is not competent to exercise the option by reason of the decision in a previous litigation which was terminated by a judgment of this Court delivered on the 19th April, 1917.
6. It appears that after the grant of the lease to the defendant on the 22nd June, 1899, the plaintiff granted a lease of adjoining lands to one Peary Mohan Roy on the 12th August and 1st December, 1899. The document of the 12th August, 1899, describes the western boundary as the ganthi land of Syama Charan Das the lessee under the grant of the 22nd June 1899. On the 9th April, 1906, the present defendant instituted a suit against Peary Mohan Roy for recovery of possession of a large tract of land on the allegation that it was comprised within the lease of the 22nd Tune 1899, and not within the lease if the 12th August, 1899. The present plaintiff, as the common landlord of the two rival claimants, was pined as a defendant, inasmuch as, in the words of the Subordinate Judge who tried that litigation, unless he was made a party to the suit he would not be bound by any decree that might be passed therein. A commissioner was appointed to demarcate the boundary between the chucks of the claimants. The trial Court came to the conclusion that the lands then m dispute were comprised within the chuck Covered by the lease of the 22nd June 1899 which was subsequently purchased by the Plaintiff. The Subordinate Judge, however, came to the conclusion that as Peary Mohan Roy had reclaimed the tract, the plaintiff should reimburse him and a decree was made accordingly on the 19th June, 1907. Upon appeal and cross-anneal the District Judge affirmed the decree on the 18th January, 1913, subject to the modification that he increased the amount of compensation payable by then plaintiff to Peary Mohan Roy from Rs. 3,868/12 to Rs. 6,637/8 On appeal to this Court Fletcher and Newbould. JJ., affirmed this decree or, the 19th April 1917 subject to a variation in form which did not affect the substance. Subsequently, the present defendant then plaintiff deposited Rs. 6,637/8 in Court to the credit of Peary Mohan Roy and obtained delivery of Possession on the 2nd February, 1918. The tract thus obtained by the defendant was 665 bighas 15 cottahs, and taken with the area already in his occupation brought up the total to 2,729 bighas 5 cottahs 11 chataks. It is plainly not open to the landlord, who was a party to that suit to take up a position inconsistent with he decision in the previous litigation which was pronounced in his presence. The effect of the decree in that suit was to determine that the tract then in dispute was covered by the lease of one of his two tenants and not that of the other. The Subordinate Judge has emphasised the important fact that there was no khas land of the landlord between the eastern boundary of the lease of the 22nd June, 1899 and the western boundary of the lease of the 12th August, 1899. The lots covered by the two leases had a common dividing line and the land then in dispute belonged to either the one or the other of the two rival claimants under their common landlord; there was no third alternative admissible. The landlord was in no sense what is called a formal party; Brojo v. Kedar (1986) 12 Cal. 580 (F.B.). Consequently, the principle enunciated by the Judicial Committee in Soorjomonee v. Suddanund (1873) I.A. Sup. 212; Pahalwan v. Muheshur (1872) 12 B.L.R. 391; and Krishna v. Bunwari Lal (1875) 1 Cal. 144, applies namely that the conclusive nature of a previous adjudication, must be determined by reference to the substance and not to the form of the proceedings. If the plaintiff were now allowed a decree for ejectment, the net result would be that the defendant would be deprived of the fruit of the previous litigation, which he had secured, at considerable expense, in the presence of the plaintiff himself. The plaintiff cannot be permitted to snatch away from the defendant, the spoils of his victory in this manner. We are of opinion that the Subordinate Judge has correctly dismissed the claim for ejectment.
7. As regards the second question, it is plain that no deduction can be allowed on account of a towpath which is not in existence. As regards the rate of rent and premium, the Subordinate Judge has allowed the rates mentioned in the lease in respect of 500 bighas in excess of 2,000 bighas, which was taken as the basis of calculation of liability when the document was executed. The propriety of this course has not been challenged by either party, and the dispute thus narrows down to the area in excess of 2,500 bighas. Here the Subordinate Judge has assessed the rent and premium at higher rates than those mentioned in the lease. We are of opinion that this view cannot be justified. The decision in the previous litigation was that the area of 665 bighas 5 cottahs then in dispute must be regarded as covered by the lease of the 22nd June 1899. It was the success of the defendant in that litigation, which made the area in his occupation exceed 2,500 bighas. He could not have succeeded then except on the footing that the tract was included in his lease and not in that of his rival. It is not open to the plaintiff now to have the rent and premium assessed on any portion of those lands on the basis that they are not covered by and subject to the operation of the grant in his favour. We hold accordingly that the rent and premium should be assessed at the same rates in respect of the entire excess lands; no valid distinction can be made between the area of 500 bighas and the area in excess of 500 bighas.
8. As regards the third question, we are of opinion that the plaintiff is entitled to recover arrears. This view is supported by the decisions in Assanullah v. Mohini (1899) 26 Cal. 789 : Jagannath v. Jumman (1901) 29 Cal. 247. We are not unmindful that arrears have been decreed in respect of the years 1322 B.S.-1324 B.S. (1915-1918), while the defendant obtained possession from Peary Mohan Roy only on the 2nd February, 1918. It must be remembered, at the same time, that he instituted the suit against Peary Mohan Roy on the allegation that he had been wrongfully dispossessed on the 12th November 1902. His remedy was clearly to realise mesne profits from Peary Mohan Roy and he did in substance so recover. The proceedings in the previous litigation leave no doubt that Peary Mohan Roy was allowed to keep the profits from the land in lieu of interest on the expenditure incurred by him in reclamation. The plaintiff, it may be added, did not realise rent from Peary Mohan Roy in respect of the excess lands. There is consequently no reason why the defendant should escape liability for rent justly due to the plaintiff. The amount decreed will however be readjusted according to the rates now allowed.
9. The result is that the appeal preferred by the defendant is allowed in part, and the cross-objections preferred by the plaintiff disallowed. The decree of the Subordinate Judge will be modified in one respect only, namery, with regard to 229 bighas, 5 cottahs, 11 chataks, the rent and premium will be calculated at Re. 1 per bigha instead of at Re. 1-8 per bigha and Rs. 5 per bigha respectively. As the victory has been a divided one, there will be no order for costs in this Court, but the costs allowed in the Court below will be calculated afresh. A self-contained decree will be drawn up in this Court.