1. The plaintiff-appellant in Second Appeal No. 2866 of 1915 is Kumar Sarat Kumar Roy of Dighapatia. There were three categories of defendants in this suit, the Malliks, described as 'principal defendants', the Chatterjees, described as 'colluding defendants', and the Roys, relatives of the plaintiff, described as 'pro forma defendants.'

2. The Kumar, who is also the appellant in Appeals Nos. 3239 and 3240 of 1915, is the holder of a five-annas nine-pies share in Mauza Kalikapur, Another share of five annas nine pies is let out in patni; the present patnidars being Sarat Chandra Mukherjee and another (appellants in Appeal No. 3282 of 1915). The former patnidar was a lady named Jarao Kumari. The remaining share of four annas six pies is now held, also in patni, by the sons of Charu Chandra Chatterjee, the appellants in Appeal No. 778 of 1916, who are not to be confused with the Chatterjee defendants.

3. The Chatterjee defendants are the tenants under the Kumar and the other appellants of a portion of Mauza Kalikapur and of a chur which has formed contiguous to the Mauza. The tenancy has given rise to a crop of cases out of some of which these appeals arise, those mentioned in the last paragraph arising out of suits for rent, to which the Malliks are not parties. I will come to them later.

4. The Roy defendants are on the record merely for formal purposes. The Kumar claims that under a partition of the family property he alone is interested in Kalikapur and there is now no dispute about this. Nor is there any dispute as to the right of the Kumar and the other of landlords of Kalikapur to collect their rent separately.

5. The facts of the different cases are similar, but the appeals (except Nos. 3239 and 3240) must be dealt with separately.

6. The history goes back to the year 1894, when the three landlords or sets of landlords instituted separate rent suits against the Chatterjees, claiming arrears of rent for the years 1297--1300 B.S. The Chatterjees denied the title of the landlords to any part of the land and repudiated the relationship of landlord and tenant. In the trial Court the suits were dismissed by the Subordinate Judge on the 1st April 1896. The decrees of dismissal were confirmed in first appeal on the 20th December 1897. But, on second appeal, the High Court held, on the 29th June 1900, that the Chatterjees, who had been put into possession of the land by the landlords, the plaintiffs in the suits, were estopped from denying the right of the latter to recover rent, The suits were accordingly remanded in order that the amount of rent payable might be ascertained. On remand the lower Appellate Court held a that there was no satisfactory evidence to show the precise quantity of land in the possession of the defendants and again dismissed the suits. On appeal to the High Court, the plaintiffs were awarded, on the 26th July 1905, certain sums which the Charterjees had deposited in Court, during the course of the suit under Section 149 of the Bengal Tenancy Act.

7. In 1898, the Kumar instituted another suit for the rent of the years 1301-1304 and. Jarao Kumari followed his example. The Chatterjees again denied the right of the plaintiffs to recover. In the Kumar's suit, however, a compromise was arrived at, embodied in a decree dated the 6th September 1907. Jarao Kumar's suit was eventually dismissed.

8. In 1902, the Kumar instituted another suit for the rent of the period from 1305 to Posh 1308. This suit came up to the High Court and was eventually decreed on the 17th June 1607.

9. Jarao Kumari also instituted a suit in 1902, which was again dismissed. But during this period Jarao Kumari cannot be regarded as the representative of the patni interest. The patni estate had been sold under Regulation VIII of 1819 and the sale had not then been set aside. (See paragraph 3 of the plaint in the suit out of which the patnidar's appeal No. 3382 of 1915 arises and the judgment of the Subordinate Judge in that suit).

10. In 1905 the Kumar sued for the rent due from 1308--1311. The Chatterjees confessed judgment and a decree was made in the Kumar's favour on the 4th October 1907.

11. The suits to which Appeals Nos. 3239 and 3240 relate were instituted by the Kumar, the first in 1910 for the rent of the years 1313--1316 and the second in 1911 for the rent of the year 1317.

12. At this point another chapter must be opened. The chur which has led to all this litigation has been thrown up by the river Bhagirathi, once perhaps the principal bed of the Ganges but now a mere arm of the main stream, leading into tbe Hooghly. The chur is near the boundaries of the districts of Bard wan and Nadia. Kalikapur is in Burdwan. The Malliks are proprietors on the Nadia side and they claim the chur or a portion of it as reformation in situ of their estate.

13. In 1896 there were proceedings under Section 145 of the Criminal Procedure Code between the Malliks and the Chatterjees. In the result the Chatterjees were retained in possession by an order of the Magistrate, dated the 31st March 1896. An application by the Malliks to the High Court in revision was dismissed on the 5th February 1897.

4. On the 15th February 1900, the Malliks instituted a suit against the Chatterjees in the Court of the Subordinate Judge of Nadia. The suit terminated on the 6th March 1902 in a compromise which is alleged by the Kumar and his co-sharers to have been extremely favourable to the Chatterjees, upon whom, it is said, the Malliks purported to confer permanent rights at a rent much lower than that which they had been paying to the Kumar and his co-landlords.

5. Another claimant to a portion of the chur appears in the person of Sitikanta Banerjee, who instituted a suit against the Chatterjees on the 5th June 1903 (No. 6 of 1913). After passing through various stages the suit was finally decreed by the Subordinate Judge of Burdwan on the 31st August 1914. The plaintiff was not awarded actual possession but obtained a decree entitling him as against the Chatterjees to rent.

6. It should be mentioned that the landlords of Kalikapur were not made parties either to the Malliks' suit or to Sitikanta Banerjee's suit. Nor does it appear that they received notice of the suits from the Chatterjees.

7. In 1912 the Malliks sued the Chatterjees for arrears of rent for the years 1317 and 1318. The latter admitted the title of the Malliks to the land but pleaded their inability to pay them rent, on the ground that the Kumar had already obtained decrees against them. They accordingly deposited the amount claimed in Court under the provisions of Section 149 of the Bengal Tenancy Act notice of the deposit was served on the Kumar but not on his co-landlords. In consequence, on the 1st May 1913, the Kumar instituted a suit against the Malliks under clause (3) of section 149. This is the suit to which the Kumar's Appeal No. 2866 relates.

8. Before coming to the individual appeals I take leave to say that the scramble of the landed proprietors concerned for this chur is undignified and unworthy of their position. Probably none of them desires to seize land which does not belong to him but each is afraid of his neighbour obtaining an advantage over him. An expert surveyor could probably settle the conflicting claims without difficulty or if a trustworthy surveyor is not procurable, an application might be made to the Government for a survey and the preparation of a Record of Bights under Chapter X of the Bengal Tenancy Act.

Second Appeal No. 2866 OF 1915.

9. In this suit, as already stated, the Malliks were the principal defendants. There was some discussion as to its precise nature but as the Kumar or his learned Pleader on his behalf has now, without objection by the other side, withdrawn it without liberty to bring as fresh suit on the same cause of action, nothing more need be said.

Second Appeals Nos. 3239 and 3240 of 1915.

10. In the Kumar's suits for rent against the Chatterjees out of which these appeals arise, only one judgment was recorded in each of the Courts below. The two appeals will, therefore, be dealt with together.

11. In the trial Court decrees were made by the Subordinate Judge substantially in the plaintiff's favour on the 25th March 1913. The learned District Judge by his first judgment, dated the 10th July 1914, dismissed the Chatterjees' appeals. By a further judgment, however, delivered on review on the 10th June 1915, he varied his previous orders. He declared apparently that the Chatterjees were not liable to the Kumar for any rent which they had paid or were bound to pay to the Malliks under the decree in their favour in the suit for rent brought by them or to Sitikanta Banerjee under the decree in his favour. He particularly directed that "in the case relating to the Malliks there will be remission of rent for the year 1317 B.S." The precise meaning is not at first sight very clear, but becomes clearer when the pleadings are examined and the facts conclusively found in the first judgment are understood. The reference to the year 1317 is due to the fact that in these suits the Kumar claims rent for the years from 1313-1317, while in the Malliks' suit the Chatterjees deposited the rent claimed by the Malliks for the years 1317 and 1318.

12. The appeals are from the decrees as modified on review and the questions which arise are:

(1) How far does the granting of the application for review affect the original decision? and (2) to what extent can the decrees as modified on review be supported?

"13. As to the present question, the accompanying plan of the ground is taken from the District Judge's first judgment. By his plaint the Kumar claimed rent at the agreed rate in respect of all the plots shown from Ka to Una except Gha, in respect of which he made no claim. In paragraph 11 he set out the areas and the rent due in respect of each plot. There was no dispute as to area and rate of rent. The Subordinate Judge says: "When the plaintiff applied for local inquiry and measurement by a Commissioner, the defendants admitted the area, of the rent claimed lands to be the same as before, and objected to the prayer of the plaintiff on the ground that it was unnecessary, and that it would be mere waste of time and money." The Subordinate Judge found, and the District Judge at first agreed, that the Kumar was entitled to rent for all the plots (except Gha), The review, it appears, was granted only as regards the land comprised in plots Gha and Una. So far, therefore, as plots Ka, Kha and Ga are concerned, the original decrees of the District Judge stand and the suits have been finally decided. The modification made on review only affects plots Cha and Una."

14. As to the second question, the review was granted on the ground of the discovery of new and important matter," the new and important matter consisting of "the judgments in the cases of Sitikanta and the Malliks."

15. Now, the judgment in Sitikanta's case was delivered on the 31st August 1914, more than a month after the date of the District Judge's first judgment in the present suits, and the Kumar was no party to Sitikanta's suit. The judgment, therefore, was not 'new' evidence in the sense in which the expression is generally used. It was not in existence when these suits were heard by the Subordinate Judge or even when the appeals were first heard by the District Judge. The question, therefore, arises whether under the provisions of Order XLVII of the Civil Procedure Code, the District Judge had any authority at all to receive this evidence by way of review for the purpose of varying the decrees which he had made on the evidence properly before him Reference may be made to the observation of Lord Davey in Rajah Kotagiri v. Rajah Vellanki 27 I.A. 197 at p. 205 : 24 M. 1 at p. 10 4 C.W.N. 725 : 10 M.L.J. 221 : 2 Bom. L.R. 771 : 7 Sar. P.C.J. 678 (P.C.): In the opinion of their Lordships the ground of amendment must, at any rate, be something which existed at the date of the decree, and the section ,does not authorise the review of a decree which was right when it was made on the ground of the happening of some subsequent event." In my opinion, the learned District Judge had no jurisdiction to review his original judgment in the light of a judgment turning on facts subsequently delivered in another Court in a suit which was not inter partes.

16. Even if the judgment had come into existence before the appeals were first heard, the District Judge would not have exercised a proper judicial discretion in admitting it as "additional evidence" under Order XLI, Rule 27. As I have said, it was not inter parties. It was not conclusive. It merely added a debatable item to the evidence already on the record Young v. Kershaw (1899) 81 L.T. 531 : 16 T.L.R. 52 and Nundo Lal v. Punchanon 42 Ind. Cas. 484 : 45 C. 60 at pp. 68 : 70 : 21 C.W.N. 1076 : 26 C.L.J. 187. In the present case, if 1 am right in my view, it is not merely a question of the proper or improper exercise of a discretion. The District Judge had no power to admit the judgment and, therefore, no discretion at all in the matter.

17. As regards the right of appeal from an order granting an application for review, a question which was dealt with in Nundo Lal's case 42 Ind. Cas. 484 : 45 C. 60 at pp. 68 : 70 : 21 C.W.N. 1076 : 26 C.L.J. 187, I think that the objection that the District Judge admitted in review evidence which he had no authority so to admit may be taken on an appeal from the decree finally made, that is, from the original decree as amended on review.

18. The judgment in the Malliks' suit for rent was delivered on the 18th April 1913. That was after these suits had been triad by the Subordinate Judge but more than a year before the date of the District Judge's first judgment. The judgment of the Munsif in the Kumar's suit against the Malliks (now withdrawn) was delivered on the 29th June 1914, while the judgment of the District Judge in the same suit on appeal was not delivered till the 12th August 1915, after the review judgment in the present suits. On review, apparently, the District Judge received in evidence the judgment of 18th April 1913 in the Malliks' rent suit and the judgment of the trial Court in the Kumar's suit against the Malliks. Here again the procedure adopted is open to objection.

19. As to the judgment of the 18th April 1913, that might have been tendered at the original hearing of the appeals in these suits. But it was not tendered on that occasion and all that it is necessary to say is that this judgment was certainly not new evidence in relation to the trial of the appeals in these suits. The objection is open in appeal under Order XLVII, Rule 7(1)(6). The judgment, I may mention, was extremely short. It was in these terms: "Defendants absent. Claim proved decreed ex parte with costs."

20. As to the judgment of the first Court in the Section 149 suit, that judgment seems to have been delivered on the day on which the District Judge heard arguments in the Kumar's appeals in these suits. If it could have been tendered at the original hearing of these appeals, the objection applies which applies to the admission of the judgment in the Malliks' rent suit. If it could not have been so tendered, it must be regarded as evidence which came into existence subsequently, and the same objection applies which I have held to be a valid objection in the case of the judgment in Sitikanta's suit. In the present case it is true that the judgment was inter partes but that seems to me to make no difference. It came into existence after the appeals had been heard by the District Judge and he had no power to make use of it for the purpose of reviewing his own judgment in these suits. There is also this remark to be made, when the judgment was admitted in review it had not become final. It was under appeal and the appeal was pending before the District Judge himself. The position must have been somewhat embarrassing to the Kumar.

21. The judgment in Sitikanta's suit and in the Section 149 suit may be open to objection from another point of view. Presumably those judgments were based on facts and materials which might themselves have been given in evidence by the Chatterjees at the trial of the Kumar's suits, but it is not necessary to pursue the subject further. In my opinion all the judgments which were admitted in review must be excluded and the amendment made in review cannot stand.

22. In what I have said I have not considered the fact that the Section 149 suit has since been withdrawn. That fact, while it may add something to the general confusion, cannot have any retrospective effect on the legality or propriety of the proceedings before the District Judge.

23. As to Sections 149(3) and 152 of the Bengal Tenancy Act, evidence of the deposit of rent in the Malliks' suit and of the failure of the Kumar to obtain within three months of the notice served on him an injunction or order restraining payment out of the money might have been given in the trial Court. In that case the effect of the deposit in regard to the Kumar's claim for the rent of the year 1317 would have been considered. It is now too late to raise this question which was not raised in this form in either of the Courts below, and as to which, as the record stands, there is no admissible evidence. We do not know how much rent was deposited.

24. Before leaving these appeals I will add a word as to so much of the argument before us as turned on the question of eviction by title paramount.

25. For the Kumar Sir Rash Behary Ghose insisted that the Chatterjees as tenants were estopped from denying the title of the Kumar as landlord. The Chatterjees, he argued, were put in possession of their original holding by the Kumar and his co-landlords, and had acquired possession of the chur lands, in their character of tenants, as an accretion to that holding. He relied on the two judgments of the High Court, to which I have already referred, delivered in the rent suits of 1894 (the first, dated the 29th June 1900, in Second Appeals Nos. 604, 743 and 757 of 1898, and the second, dated the 29th June 1900, in Second Appeals Nos. 1463, 1388 and 1369 of 903) and also on the judgment of the High Court in the Kumar's rent suit of 1902 (delivered on the 17th June 1907 in Second Appeal No. 1811 of 1906). This last judgment mentioned, and refused to set aside, a finding by the Courts below to the effect that the compromise of 6th March 1902 between the Chatterjees and the Malliks was collusive in its character and insufficient to establish any eviction of the Chatterjees by title paramount.

26. For the Chatterjees Mr. Chakraburtty argued that the chur lands covered a larger area and were more valuable than the original holding, that in such a case the doctrine of the tenant's estoppel should not be pushed too far and that, in any case, whatever the position may previously have been, it had been altered as between the Kumar, the Chatterjees and the Malliks by the Malliks' rent suit of 1912 and the proceedings arising out of it.

27. The question, therefore, as between the Kumar and the Chatterjees seems to be narrowed down to this: Whether the failure of the Kumar to assert his own right to the rent deposited by the Chatterjees in the Malliks' suit and so protect the Chatterjees from the Malliks' claim justifies the former in pleading that they have been evicted or constructively evicted by the latter under a paramount title. That question must be left open, for the simple reason that the materials properly on the records of these suits are not sufficient for the determination of the question whether the title claimed by the Malliks is or is not in fact a paramount title.

28. The result is that the decrees of the District Judge on review should be set aside and the decrees of 10th July 1914 dismissing the appeals preferred to him restored. No order as to costs of the appeals to this Court.

Walmsley, J.

29. I agree.

Second Appeal No. 3282 OF 1915.

Richardson, J.

30. This appeal arises out of a suit brought by the Mukherjee patnidars for the rent due for the years 1314-1317 in respect of their share of the lands held by the Chatterjees.

31. The suit was substantially decreed by the Subordinate Judge in the trial Court on the 11th June 1914. On appeal the learned District Judge, by his judgment and decree dated the 8th September 1915, varied the Subordinate Judge's decree in a manner which cannot be regarded as satisfactory. The conclusion of his judgment is thus expressed:

On the materials it is difficult to determine how much of the rent should be remitted, but I have no doubt that the matter can be decided in the execution proceedings and, if necessary, by a fresh local enquiry. The appeal is allowed in part. The appellants (i.e., the Chatterjees) will get two-thirds of the costs. The defendants (again the Chatterjees), must be relieved of the rent for 1317 B.E., which they have to pay to the Malliks. The plaintiffs will not get rents for the lands covered by Touzis Nos. 305 and 306 and for the Touzis owned by the Malliks and by Sitikanta and to which their titles have been declared in Title Suit No. 508 of 1913 of the second Court of Katwa (that is the Kumar's suit 24 against the Malliks) and in Title Suits Nos. 201/5/353 and 25/202/6/354 of 1323/1914 of the first Subordinate Judge, Burdwan" (the suit or suits brought by Sitikanta are referred to).

32. These orders do not finally dispose of the present suit. It is in effect remitted for final disposal to the execution department. The suggestion that a fresh local inquiry should be made in the course of execution is also difficult to understand. A Pleader Commissioner was appointed in the trial Court to measure the areas of culturable and Kasar lands in plots Ka, Kha, Una and Cha (the plots to which this suit relates). In his report the Commissioner states that after his appointment, the Chatterjees applied by petition to have certain other matters inquired into locally. The petition was referred to the Commissioner and he asked for the Thak Maps and field books of certain Mauzahs. These were not supplied by the Chatterjees, but after the Commissioner's return from the locality, they filed another petition, on which the Court made an order directing a further inquiry on condition that they deposited the Commissioner's costs. This they failed to do and no inquiry was made. Apparently the Chatterjees again raised in appeal the questions which ought to have been decided on the spot by the Commissioner appointed by the trial Court.

33. The claim, as I have said, is in respect of plots Ka, Kha, Una and Cha. Plot Grha is omitted as in the Kumar's suits. Plot Ga is also omitted, the Kumar's claim to be now the sixteen annas malik of that plot is apparently not disputed.

34. As in the Kumar's suits, the claim as regards plots Ka and Kha was not seriously contested "The appeal", says the District Judge, "is now confined to the portion of the chur covered by Una and Cha."

35. In this case, there was no review and no 'new' evidence was admitted by that door. What the learned District Judge did was to admit "additional" evidence on the appeal, acting presumably under the provisions of Order XLI, Rule 27. The mode in which he approached the case is best shown by his own words:

It appears that certain suits were pending when the judgment in this case was pronounced. In two of the cases decrees have been obtained by private proprietors and the contention is that there has been an eviction by title paramount. The contention seems well-founded. The Appellate Court is bound to take cognizance of events that have happened since the decision of the suit.

36. This last proposition, in the form in which it is stated and for the purpose to which it is directed, cannot be supported in law. What are the events referred to? They were the judgment in Sitikanta's suit or suits, dated the 31st August 1914 and the judgments in the Kumar's suit against the Malliks,' viz., the judgment of the trial Court on the 29th June 1914, and the judgment of the District Judge on the 12th August 1915. The judgments were not delivered in suits to which the present plaintiffs were parties. In regard to the Malliks' suit for rent they occupy a better position than the Kumar, because no notice of the deposit made by the Chatterjees was given to them under Section 149(2), What I have said in the Kumar's suits about the judgment obtained by Sitikanta applies to all these judgments in the present suits. They are in no way conclusive. They are merely debateable pieces of evidence and they ought not to have been admitted under Order XLI, Rule 27.

37. It is true that at their own request the appellants were added as plaintiffs in the Kumar's suit against the Malliks but they subsequently withdrew, as we are informed, on the ground that they had not received the prescribed notice. It is not necessary now to consider the precise effect of the proceedings on the relations between the plaintiffs and the Chatterjees.

38. As to Touzis Nos. 305 and 306 any question about the lands oovered by those Touzis should have been made the subject of investigation by the Commissioner appointed in the trial Court.

39. The appeal should, in my opinion, be allowed. The judgment and decree of the District Judge should be discharged and the decree of the Subordinate Judge restored. No order as to costs here or in the lower Appellate Court.

Second Appeal No. 778 OF 1916.

40. This appeal is preferred by the two sons of Charu Chandra Chatterjee, the plaintiffs in the suit, whose title is not now questioned. They claim rent in respect of their share of the lands held by the Chatterjees for the period from 1314 to the Ashar Kist of 1317. The claim was partly decreed by the Subordinate Judge on the 5th March 1914. The plaintiffs appealed to the District Judge and there were cross-objections by the Chatterjees. By his first judgment, dated the 10th June 1915, the District Judge substantially allowed the plaintiffs' appeal and dismissed the defendants' cross-objections. A review, however, was granted, as in the Kumar's suits, and by his judgment on review, dated the 26th January 1916, the learned District Judge directed that a decree should be made on the same lines as the decrees made in review in the Kumar's suits.

41. The plan or the ground given in the District Judge's first judgment is similar to the one I have given above but 18 somewhat differently lettered. Ka in the plan in this case corresponds to "Kalikapur" in the other plan, Kha to Ka, Ga to Kha, Una to Ga, Gha to Gha, Cha to Cha and Chai to Una. Using for the sake of uniformity the lettering in the plan given above the plaintiffs ended by confining their claim to a plot forming the Asali land of Kalikapur and plots Ka, Kha, Una and Cha omitting plots Ga and Gha.

42. The judgment and decree of the learned District Judge on review are open to the same criticisms and objections as the judgment which he passed on review in the Kumar's suits. They should be set aside with the effect that his original judgment and decree will be restored. No order as to the costs of this appeal or as to the costs incurred in the lower Appellate Court in the hearing on review.

Walmsley, J.

43. I agree.