In this appeal the Plaintiff is the Appellant. In the Court of first instance she sued to recover from the Defendants arrears of rent for the years 1303 to 1305 F. on the allegation that the yearly jama payable by the Defendants was Rs. 53-4 as.
The Defendants contended that the yearly rent was Rs. 42-12 as.
In support of her claim, the Plaintiff relied on a judgment and decree, dated the 20th January, 1887, in which, in a suit brought by her predecessor against the same Defendants, the claim was decreed at the rental of Rs. 52-4 as per annum. The Defendants, on the other hand, relied on a judgment and decree, dated the 21st December, 1896, in which, in a similar case, the Plaintiff obtained a decree at the rental of Rs. 42-12 as. Before the Munsif, it was argued on behalf of the Defendants that the Plaintiff in this case was barred by the doctrine of res judicata from recovering rent at a higher rate than Rs. 42-12 as which was decided to be the rental in the judgment of the 21st December, 1896. On the other hand, it was contended on behalf of the Plaintiff that, having regard to the circumstances of the case and the previous judgment of 1887, that judgment could not be held to operate as res judicata. The Munsif did not accept the contention put forward by the Defendants and, holding that the rental was Rs. 53-4 as claimed by the Plaintiff, gave her a decree for the full amount claimed with costs and interest.
On appeal to the District Judge, that officer reversed the finding of the Munsif holding that the judgment and decree in the case decided on the 21st December, 1896 operated as res judicata between the parties and was a bar to the Plaintiff recovering rental at a higher rate than Rs. 42-12 as.
The Plaintiff appeals to this Court. In support of the appeal it has been argued that the judgment and decree of the 21st, December 1896 cannot be regarded as finally deciding the question of rental as between the two parties, because, in that case, there was no actual adjudication on evidence as to the rent and the cases of Hurry Behari Bhagat v. Pargun Ahir, Bahshi v. Nizamuddi and Nekejaie v. Nanda Dulal Bamkeja(3) have been relied on. For the Defendants, it is contended that the question of the rental was, in fact, adjudicated by the Court in the case which was decided on the 21st December, 1896 and that, under the ruling of Kishore Lal Dey v. The Administrator-General of Bengal(4) that judgment would operate as a bar to the present claim. We are unable to find that the District Judge in this case really took into consideration the question whether, in the case which was decided on the 21st December, 1896, there was an adjudication as to the rental for years other than those which were in contest in that suit. We think that, so far as the rents of the years, which were in contest in that suit were concerned the decision no doubt is an absolute bar under the doctrine of res judicata to any suit for the rents of those years. But so far as the rents or rates of rent of subsequent years are concerned, we do not think that the judgment can be held to be an absolute bar, so as to prevent the parties from raising the question in a subsequent suit. In our opinion, the prior decision may be taken to determine the rent claimed in that suit, and to give rise under sec. 51 of the Bengal Tenancy Act to the presumptions that the rents for subsequent years remained the same. That appears to be the view which was taken by the learned Judges in the case of Hurry Behari Bhagat v. Pargun Ahir and that ruling was not dissented from in the judgment in the case of Bakshi v. Nizamuddi. It seems also to have been followed in the cases of Nil Madhub Sarkar v. Brojo Nath Singha(5) and Maharaja, Jotindra Mohun Tagore v. Shumbhu Chunder Bhuttacharjee(6). We think that the weight to be attached to the presumption thus raised must depend, first, on the conditions under which that decision was arrived at, that is to say, whether it was after an adjudication of the question of the amount of rent or rate of rent or not. If in the prior suit there had been such an adjudication, it would be only open to the Judge in the subsequent suit to look to subsequent circumstances and events to enable him to determine whether there had been any change in the relations between the parties since. If there was no adjudication of the question, it would be for him to consider the circumstances and events both prior and subsequent to that former suit in order to enable him to determine the relations existing between the parties and the rentals rightly due for the lands for the years in suit. In the present case, the District Judge has not done this and has arrived at his decision acting on the presumption that the judgment of 1896 was absolutely binding. We do not consider that this is correct and we, therefore, set aside the judgment and decree of the District Judge, and direct that the case be sent back to him for retrial having regard to the remarks made above.
The costs of the appeal will abide the result.
S.C.S
Case remanded.