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  • Mookerjee
  • A.C.J
  • Fletcher, J.
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  • Mookerjee
  • A.C.J
  • Fletcher, J.
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Smart Summary

Summary of the Opinion (Mookerjee, A.C.J.)

Factual and Procedural Background

This is an appeal by the defendants in an action for arrears of rent for the Bengali years 1318–1321. The plaintiffs sued for rent at the rate of Rs. 65-14-10 gandas for an area stated by the plaintiffs; the defendants pleaded that a substantial portion of the land had been diluviated and that only a smaller area was fit for cultivation and liable to rent, and they pleaded a marginally different rate (Rs. 65-12-8 gandas). There was also a dispute about the amount of cess payable.

At trial the Trial Court accepted the defendants' contentions and decreed accordingly. On appeal the Subordinate Judge reversed and decreed the plaintiffs' full claim. The present appeal raises primarily whether the defendants are liable to pay rent on the plaintiffs' stated area or only on the area actually fit for cultivation — a question the court said depends primarily on the true construction of a deed of compromise executed in earlier litigation between the parties.

Additional factual context supplied in the opinion: the disputed lands lie in char Pirtala, a temporarily settled estate held by the defendant company. There were historical jote and darjote arrangements between predecessors of the parties (jote to the plaintiff/predecessor; sublet in darjote to the predecessor of the defendant company on 28 May 1865). The parties' respective rents and profit margin (the plaintiff having a profit of 4 annas 6 pies per bigha under earlier agreements) were not in dispute; the contention is limited to extent (area) for calculation of profit and rent.

Legal Issues Presented

  1. Whether the defendants are liable to pay rent on the basis of the area alleged by the plaintiffs or on the basis of the area actually fit for cultivation (i.e., whether rent must be paid on the larger stated area or reduced for diluvion).
  2. What is the true construction of the deed of compromise (particularly paragraphs 10 and 11) executed on 4 February 1889, and whether those provisions permit abatement of rent on account of diluvion and/or preclude enhancement for alluvion for the char Pirtala.
  3. Whether the prior litigation (notably the 1911 suit determining the cultur-able area) operates as a bar (res judicata / estoppel) on the plaintiffs' present claim to rent on a larger area.

Arguments of the Parties

Plaintiffs' Position

  • The plaintiffs claimed rent for the years in suit on a stated area and sought recovery at the specified rate (initially presented as Rs. 65-14-10 gandas for an area described in the plaint).
  • At one point the plaintiffs relied upon a previous determination (the 1911 litigation) of area; the opinion records that in the present suit the plaintiffs relied on the area determined in 1911 (234 bighas, 8 cottahs, 11 chattaks) rather than pressing a strict interpretation of the 1889 compromise as fixing a specific area irrespective of diluvion.

Defendants' Position

  • The defendants pleaded that the land had diluviated to a considerable extent and that during the years in suit only a reduced area was occupied by them as fit for cultivation (variously pleaded as 198 bighas 7 katahs 5 chattaks; the Court later refers to an area of 198 bighas, 8 cottahs).
  • On that basis the defendants claimed rent only on the reduced area and relied on the compromise deed (and prior adjudication) to support their right to abatement for diluvion and to resist any claim to rent on additional accreted lands.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Doe d. Leicester v. Biggs Where two clauses or parts of a deed are repugnant the earlier clause will normally be preferred and the later rejected (subject to exceptions); but the court should avoid this expedient if reconciliation is possible. The court invoked this principle to explain the general rule of construction but declined to apply it to produce repugnancy; instead it sought to reconcile paragraphs 10 and 11 of the compromise deed.
Bateson v. Gosling Supports the rule regarding repugnancy and preference of clauses and the court's reluctance to reject parts of a deed without attempting reconciliation. Used together with Doe d. Leicester v. Biggs to frame the court's approach to interpreting apparently conflicting clauses in the compromise deed.
Walker v. Giles Effect should be given to that part of an instrument which carries into effect the real intention; parts that would defeat the intention should be rejected. The court applied this maxim to prefer a construction of paragraphs 10 and 11 that carried into effect the parties' real intention, avoiding a construction that would defeat that intention.
Hebbert v. Purchase The conduct of parties may be used to determine the true construction of an obscurely framed document. The court noted this principle but stressed it is not admissible where the instrument's terms are unambiguous; the court found the natural construction to be consistent with prior conduct but did not rely solely on conduct to construe plain words.
North East Railway v. Hastings Where words of an instrument are plain and unambiguous, prior conduct of parties cannot alter or qualify those words. The court cited this to emphasize that, if the compromise deed were plain, conduct could not vary its clear terms; the court nonetheless noted that the natural construction fitted prior conduct.
Lilabati v. Bishun Chobey Judgment estoppel extends to all facts involved in and necessary to sustain a prior judgment. The court relied on this principle to hold that the 1911 judgment operated as an estoppel against the plaintiffs regarding matters decided there (i.e., entitlement to abatement for diluvion).
Pakalwan Singh v. Muheshur Buksh Authority for the extent of estoppel by judgment as applied by the Judicial Committee. Referred to as authority supporting the doctrine that a prior judgment estops parties with respect to findings essential to that judgment.
Soorjomonee v. Suddanund Where a question was raised by pleadings and argued before the court, the judgment on that issue operates as res judicata even if no issue was technically framed to encompass the whole of it. The court invoked this to justify treating the 1911 adjudication as conclusive as to the effect of the tenth paragraph of the compromise decree, notwithstanding technicalities of issue-framing.
Mane Mohammed v. Dhani Authority supporting that a decision upon the true effect of an instrument in prior litigation is conclusive between the parties. Used to reinforce the conclusion that the prior decision on paragraph 10 is binding on both parties in the present dispute.
Upendra Kumar v. Sham Lal Support for treating a previous decision on a matter as conclusive for the parties. Relied upon as additional authority that the decision in the earlier suit is binding between the parties on the same controversy.

Court's Reasoning and Analysis

The court began by identifying the central textual issue: the construction of paragraphs 10 and 11 of the 4 February 1889 petition of compromise. Paragraph 10 (in its parts) (a) dealt with accreted lands of all chars other than Pirtala and Maheskundi and made certain non-culturable accretions rent-free until a second measurement, and (b) contained a specific limitation stating that no claim to any land accreted in excess of the original jote in Maheskundi and Pirtala would be entertained. Paragraph 10 also included a general clause that if any portion of jote land was washed away by river, neither party could claim the rent of the land found upon measurement to have been washed away by river. Paragraph 11 provided for survey and measurement and for assessment of rent after deduction of the non-culturable land, and was expressed in general terms applicable to all chars.

The court considered the possibility of repugnancy between the specific provision in paragraph 10 (the special rule for Pirtala and Maheskundi) and the later general provision in paragraph 11. It reviewed the established rules of construction (citing authorities) which permit giving effect to the first clause where repugnancy is irreconcilable, but emphasised the court's duty to exhaust every means to reconcile apparent inconsistencies and to ascertain the parties' intention from the entire instrument.

Applying these principles, the court construed paragraphs 10 and 11 together in a manner that avoided repugnancy: paragraph 10 fixed the maximum rent entitlement for Pirtala and Maheskundi by denying additional rent for accreted lands (i.e., no enhancement for alluvion), while the general clause regarding diluvion (washing away) applied to all chars including Pirtala and Maheskundi. Paragraph 11's provisions for measurement and assessment after deduction of non-culturable land were held to apply to all chars as well. Thus the court concluded that the compromise deed both capped enhancement for accretions and allowed for reduction where land had been lost by diluvion.

The court then examined the prior (1911) litigation in which the area of culturable land was litigated and determined: an issue had been framed as to the quantities in the defendants' possession and the quantity for which the defendant was liable to pay rent; a Commissioner reported and the Trial Court and District Judge concluded that rent was payable only in respect of lands not diluviated and that the area in occupation was 234 bighas, 8 cottahs, 11 chattaks, with a decree entered accordingly.

The opinion explained that the plaintiffs in the present suit did not press the 1889 compromise as fixing a gross area regardless of alteration by alluvion or diluvion; instead they accepted the 1911 determination of area. The court held that by doing so the plaintiffs were bound by the 1911 decision which necessarily involved the conclusion that abatement for diluvion was appropriate. The court relied on authorities on estoppel/res judicata (Lilabati v. Bishun Chobey; Pakalwan Singh; Soorjomonee v. Suddanund; Mane Mohammed; Upendra Kumar) to conclude that the decision in the 1911 suit as to the effect of paragraph 10 and the extent of culturable land was binding and conclusive between the parties.

On that footing the court accepted the defendants' claim to abatement for diluvion and calculated the plaintiffs' recovery as rent at the rate of 4 annas 10 gandas per bigha per year for the years in suit on an area of 198 bighas, 8 cottahs, which amounted to Rs. 55-12-16 gandas annually. The court further allowed cesses at half an anna per rupee, interest at twelve and a half per cent on the amount due, and allocated costs (plaintiffs to receive trial-court costs proportionate to the amount decreed; plaintiffs to pay defendants' costs of this appeal; each party to bear his own costs of the appeal to the Subordinate Judge). The court ordered execution, if necessary, to be taken first against any amount in deposit.

Holding and Implications

APPEAL ALLOWED. The decree of the Subordinate Judge was set aside and a modified decree was made in favour of the plaintiffs in the terms set out by the Court.

Direct consequences for the parties (as ordered by the Court):

  • The plaintiffs are entitled to recover rent at a rate of 4 annas 10 gandas per bigha per year for the years in suit on an area of 198 bighas, 8 cottahs (amounting to Rs. 55-12-16 gandas annually as stated by the Court).
  • The plaintiffs are entitled to cesses on this amount at half an anna per rupee.
  • The amount due shall carry interest at 12.5% (twelve and a half per cent).
  • Cots: the plaintiffs will obtain costs in the Trial Court proportionate to the amount decreed; the plaintiffs must pay the defendants the costs of this appeal; each party will bear his own costs of the appeal to the Subordinate Judge.
  • Execution, if necessary, shall first be taken out against any amount in deposit.

Broader legal implication identified by the Court: the opinion applies ordinary rules of deed construction and the doctrine of estoppel by judgment/res judicata to hold that a prior adjudication as to the effect of a compromise and as to the cultur-able area is conclusive between the parties. The Court did not state that it was establishing any novel legal principle; its decision rests on applying established rules of construction and res judicata to the facts.

Judge Fletcher, J. concurred. Result recorded: Appeal allowed.

Show full summary ...

    Midnapur Zemindari Co. Ld. v. Jogendra Kumar Bhaumik

    Mookerjee, A.C.J:— This is an appeal by the defendants in a suit for arrears of rent for the Bengali years 1318–1321. The plaintiffs claimed rent at the rate of Rs. 65-14-10 gandas for an area of 234 bighas 8 katahs and 11 chattaks. The defendants pleaded that the land had diluviated to a considerable extent, that during the years in suit, an area of only 198 bighas 7 katahs and 5 chattaks of land was in their occupation as fit for cultivation, and that they were consequently bound to pay rent thereupon at the rate of Rs. 65-12-8 gandas. There was also a dispute as to the amount of cess payable. The Trial Court accepted the contention of the defendants and made a decree accordingly. Upon appeal the Subordinate Judge has decreed the claim in full. On the present appeal, the chief controversy is, whether the defendants are liable to pay rent on the basis of the area alleged by the plaintiffs or the area actually fit for cultivation. The determination of this question depends primarily upon the true construction of a deed of compromise filed in a previous litigation between the parties.

    2. The land in arrears is situated in char Pirtala which is a temporarily settled estate held by the defendant company. A large tract of land in the char was let out in jote right to the plaintiff or her predecessor by the predecessor of the defendant company.

    3. Then the plaintiff or her predecessor sublet the land in darjote right to the predecessor of the defendant company on the 28th May, 1865. The defendant company thus hold the entire village under Government as a temporarily settled estate, and what has been called the middle portion thereof, under the plaintiff. The position consequently is that the defendant company are entitled to realise rent from the plaintiff in respect of the jote interest and are liable to pay rent to her in the character of darjotedar. The rate of rent payable by the plaintiff to the defendant in respect of the jote right was fixed at 9 as 6 pies per bigha, whereas the rent payable by the defendant to the plaintiff in respect of the darjote right was fixed at 14 annas per bigha; the plaintiff would thus have a profit of 4 annas 6 pies per bigha. There is now no question as to these rates, and the dispute is limited to the extent of the area to be taken as the basis for the calculation of the profit.

    4. In 1888, the present plaintiff instituted a suit for rent against the predecessor of the defendant company in the Court of the Subordinate Judge of Nadia. The claim related to the arrears in respect of the tenancy now in suit as also several other tenancies. On the 4th February, 1889, a consent decree was made in accordance with a petition of compromise. The parties agreed that whatever might be the rate of assessment by the Collector on occasions of resettlement of the temporarily settled estate in future, there would be no alteration in the rate of profit which the defendants undertook to pay to the plaintiff in respect of the darjote. The deed of compromise then proceeded to make provision for the payment of rent of the different chars and tenancies. The tenth paragraph provided that the accreted lands of all chars (other than the char Pirtala and char Maheskundi) that might be found to be non-culturable and unfit for cultivation would remain rent-free till the second measurement, and the re-maining land would be held and possessed as appertaining to the darjote; the defendants would continue to pay to the plaintiff, the rent thereof, at the rate and terms previously mentioned and pay cesses according to the law and take rent and cesses from the plaintiff for her jote according to those terms. Then comes the following provision with respect to Pirtala and Maheskundi:

    “No manner of claim of the plaintiff to any land accreted in contiguity with and in excess to the original jote of 788 bighas in char Maheskundi and in excess to the original jote of 305 bigahs 17 cotthas 16 chhataks in char Pirtala will be entertained.”

    5. This is followed by a clause expressed in perfectly general terms and applicable to all the chars:

    “If any portion of the jote land in all those chars is washed away by river, then neither party shall be competent to claim from the other the rent of the land that may be found upon measurement to have been washed away by river.”

    6. The eleventh paragraph of the petition of compromise contains a provision for the survey and measurement of the darjotes in all the chars and for the assessment of rent after deduction of the non-culturable land. The Courts below have disagreed as to the true construction of the tenth and eleventh paragraphs of the petition of compromise. The Trial Court held that the terms of paragraph eleven made the defendant liable to pay rent, only upon the culturable land as determined after survey and measurement. The Subordinate Judge, on the other hand, held that as the tenth clause makes a special reference to char Pirtala, paragraph eleven can have no application in respect of the darjote in that char. The Subordinate Judge has apparently assumed that the two provisions are repugnant and that consequently the special provisions which comes first must be carried out to the exclusion of the general provision which comes later. It may be conceded that, as observed by Lord Mansfield, C.J, in Doe d. Leicester v. Biggs (1), and by Willes, J. in Bateson v. Gosling (2), if there are two clauses or parts of a deed repugnant to each other, the first will be I received and the latter rejected, unless there is some special reason to the contrary; but this is an expedient to which the Court very reluctantly has recourse, and never until it has exhausted every other means in its power to reconcile apparent inconsistencies: and the rule is subordinate to the general principle that the intention must be ascertained from the entire contents of the deed; for, in the words of Wilde, C.T, in Walker v. Giles (3), there is no doubt that effect ought to be given to that part which is calculated to carry into effect the real intention and that part which would defeat it should be rejected. Now, if we take the provisions in paragraphs 10 and 11 together, it is possible so to construe them as to avoid mutual repugnancy. Para. 10 distinguishes in the earlier part the lands of char Pirtala and char Maheskundi from the lands of all other chars. In respect of the latter, the paragraph provides that no rent is to be assessed on non-culturable land still the second measurement, and the remaining lands would be held as appertaining to the darjotes on rates of rent previously specified. Provision is made thereafter for the two chars, Pirtala and Maheskundi, which are to be taken to comprise specified areas, and additional rent is not to be assessed for excess lands even if there be any accretion. Then follows a general provision—applicable alike to all chars including char Pirtala and Maheskundi—that if in all the chars, land is washed away by the river, neither party shall be competent to claim from the other rent for the diluviated land. Para. 11 which comes next describes the procedure to be followed for periodical measurement and assessment; in terms, this provision applies to all chars. A careful scrutiny and comparison of the contents of paragraphs 10 and 11 show that they are not altogether irreconcilable. The substance of the matter, then, is that the maximum rent payable for Pirtala and Maheskundi is fixed, as additional rent cannot be claimed for lands accreted; at the same time, if land is washed away by dilution, the rent may be re-adjusted and reduced. The construction we place upon the two paragraphs is consistent with the result of the previous litigations between the parties. We do not overlook that while the true construction of an obscurely framed document may be determined by reference to the conduct of parties; Hebbert v. Purchase (4), no such procedure is admissible when the terms of the instrument are unambiguous, for as Lord Halsbury said in North East Railway v. Hastings (5), no amount of acting by the parties can alter or qualify words which are plain and unambiguous. But, it is satisfactory to find that the natural construction of a document which governs the rights of the parties, fits in with what has been previously accepted and recognised as the correct interpretation.

    7. In 1911, the plaintiff sued the defendant company for arrears of rent of the disputed darjote for the Bengali years 1314–1317, that is, the period immediately antecedent to the years for which rent is claimed in this litigation. The plaintiff claimed rent for an area of 300 bighas, 18 cottahs and 15 chattaks atan annual rate of 4 annas 6 pies, per bigha. The defendant company pleaded that the land had diluviated, that the area of culturable land in their occupation was only 234 bighas, 8 cottahs 11 chattaks and that the rent was consequently payable only in respect thereof. Upon these pleadings, an issue was framed in the following terms: “What quantities of and were in possession of the defendant in each of the years in suit? In respect of what quantity is the defendant liable to pay rent?” The Trial Court came to the conclusion that rent was payable only in respect of the lands which had not been diluviated and were culturable, and a Commissioner was appointed to determine their area. Upon his report the Court came to the conclusion that the area in the occupation of the defendants was 234, bighas, 8 cottah 11 chattaks and gave the plaintiff a decree for rent on that basis. On appeal by the plaintiff the District Judge elaborately considered the question of the true interpretation of paragraph 10 and held that though there could be no claim for enhancement on account of alluvion, there would be abatement on account of diluvion. His conclusion was that the plaintiff was not entitled to realise rent for the whole 300 bighas, 18 cottahs, 15 chattaks of the Pirtala char lands and that the defendants were entitled to abatement on account of a diminution in the area. He then discussed the question, whether the area had been correctly ascertained and affirmed the decree for rent at Rs. 6514–6510 on 234 bighas, 8 cottahs, and 11 chattaks of land. It will be observed that in the present suit, the plaintiffs do not claim rent on the basis of 305 bighas, 17 cottahs, 15 chattaks as stated in the petition of compromise of the 4th February, 1889, nor on the slightly reduced area of 300 bighas, 18 cottahs, 15 chattaks mentioned in the plaint of the suit of 1911, but only on the basis of 234 bighas, 8 cottahs, 11 chattaks which was determined in that litigation as the cultur-able area in the occupation of the defendants. To put the matter concisely, the plaintiffs do not any longer take their stand on the compromise decree of the 4th February, 1889, as entitling them to rent of the darjote in char Pirtala on the basis of a stated area, regardless of alteration by alluvion or diluvion; they are content to take their stand on the determination of the area in the suit of 1911. But this view manifestly places them in a situation of inextricable difficulty. If the plaintiffs rely upon the result of the litigation of 1911, they must face the position that the determination therein involves the decision that the defendants are, entitled to abatement on the ground of diluvion. As pointed out in the case of Lilabati v. Bishun Chobey (6), on the authority of the decision of the Judicial Committee in Pakalwan Singh v. Muheshur Buksh (7), the estoppel of a judgment extends to all facts involved in it as necessary steps or the ground-work upon which it must have been founded; in other words, a judgment operates by estoppel as regards all the findings which are essential to sustain the judgment. If, as was said by the Judicial Committee in Soorjomonee v. Suddanund (8), the question was raised by the pleadings and argued, if both parties invoked the opinion of the Court thereupon, we cannot come to the conclusion that the judgment upon it was ultra vires, merely because an issue was not framed which, strictly construed, embraced the whole of it regard must he had rather to the substance than to the form of action, which would by no means prevent the operation of the general law relating to res judicata. In the case, before us, it is plain that in the previous suit for rent the root question agitated between the parties was the true effect of the tenth paragraph of the compromise decree of the 4th February, 1889, and the decision thereupon is, equally conclusive upon both the parties, see Mane Mohammed v. Dhani (9), and Upendra Kumar v. Sham Lal (10). There is thus no escape from the conclusion that the defendants have rightly claimed abatement of rent and the plaintiffs can recover rent at 4 annas 10 gandas per bigha per year for the years in suit on an area of 198 bighas, 8 cottahs, that is Rs. 55-12-16 gandas annually. The plaintiffs are also entitled to cesses on this, amount at half an anna per rupee. The amount due will carry interest at twelve and a half per cent. The plaintiffs will get costs in the Trial Court in proportion to the amount decreed they must however pay the defendants their costs of this appeal; each party will pay his own costs of the appeal to the Subordinate Judge. Execution must, if necessary, be taken out in the first instance against the amount in deposit if any. The appeal is allowed, the decree of the Subordinate Judge set aside and a modified decree made in favour, of the plaintiffs in the terms set out.

    Fletcher, J.:— I agree.

    8. Appeal allowed.

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    Midnapur Zemindari Co. Ld. v. Jogendra Kumar Bhaumik
    (Aug 17, 1920)