1. This is an appeal arising out of a number of suits which in the Court below gave rise to four appeals, but in this case we are only concerned with one which arises out of suit No. 169 of 1936 in which according to the statement of the learned Judge in the Court below there was a claim foe tangiana at the rate of Rs. 150 and also ground-rent for the land on which the defendant's gola house stands at the rate of Rs. 8-13-0 per year for the years 1341 to 1343 Fasli. I have purposely substantially quoted the words of the Judge in the Court below, because upon the question of what this Rs. 150 was depends my decision in the case. I must confess that my mind has changed very considerably during the course of the argument, but in the result the question to be decided falls within a very small compass; and, once that question is decided, it seems to me that the other difficulties in the case disappear. The substantial question on the merits which arose, apart from the technical objection to the claim which has been raised by Mr. P.B Das in this Court, was whether the defendant was liable to pay the sum of Rs. 150. I do not think there is any substantial dispute between the parties as to his liability to pay Rs. 8,12-0 which was the ground-rent. The question whether he should pay the Rs. 150 was made to depend in the Court below first upon custom and then upon contract. It would appear that the defendant and the plaintiff were the successors-in-title of persons who (if the contract existed) originally entered into that contract. The learned Judge in the Court below has come to the conclusion that there was no contract to pay tangiana. I propose to quote his words to prevent any difficulty arising. The learned Judge says:
In view of the evidence and circumstances of the case which I have discussed at length and which has been considered by the learned Munsif, I agree with him in holding that no contract to pay tangiana has been proved nor has any realization of the same from the defendants at the lump rates claimed or at any rate has been established.
2. The point was accordingly decided against the appellants before the lower Appellate Court. The learned Judge then goes on to point out that there was practically no evidence of custom and comes to a conclusion against the plaintiff so far as his case depended on custom. It seems to me quite clear that the finding of the learned Judge in the Court below that there was no contract to pay would entitle the defendant to have the suit, so far as it concerned the sum of Rs. 150, dismissed as against the plaintiff. But the learned Judge proceeds to determine the case on the footing of a previous judgment and after having discussed the various considerations placed before the Judges ab various stages of that case makes this observation:
The defendants must be presumed to hold the gola lands on the same terms and conditions as their father against whom the decree was passed so far back as 1672 and there is no reason to think that they have not paid the rent ever since.
3. He also points out that even if rent had not been paid, the fact would not relieve the defendants of the liabiliby. It is difficult be understand the judgment having regard to the previous statement of the learned Judge that no contract was proved. It is only on the footing of contract that the liability of the defendant would arise, and the conclusion stated by the Judge to which I have referred as regards the previous judgment of 1872 is tantamount to a finding that contract was to be implied from the circumstances of the case. It seems therefore that the learned Judge has decided the liabiliby of the defendant on the footing that he held over as laid down in the judgments in the previous case (Exs. 11 and 11-a) and decided that liabiliby was a continuing liability. It is contended by Mr. Khurshed Husnain on behalf of the plaintiff-respondent that the judgment is res judicata. It seems to me that is an argument which cannot be accept. What was decided in that case was a question of title—the question of the bible of the plaintiff in the case of 1872 was decided, as it was contended (so it appears) that the plaintiff was not entitled be claim the sum. It is upon that fact that the question of title was decided in the case, which decision Mr. Khurshed Husnain contends operates as res judicata. A passage in Sir Dinshaw Mulla's book on Code of Civil Procedure is relied upon by both parties. That passage is as follows:
If the question of title is gone into in the previous suit as if the right of rent were sought to he established not for one particular year, but once for all, it will be said to have been directly and substantially in Issue. But if the question of title is gone into in the previous suit as if the right of rent were sought to be established not once for all but for one particular year, it will be said to have been in issue collaterally or incidentally.
4. Ib seems to me that the question of title in this case was collateral and incidental to the suit and not directly in issue: in other words, It depended entirely upon the circumstances of the case. If it was res judicata for all time, as was contended, then the logical result of that proposition would be that the defendant would be liable for rent whatever may happen: in other words, whether he went out and delivered up possession to the landlord or not. In my opinion, it is very difficult, if not impossible, to contend that the previous judgment was res judicata. It might be said in this case and that seems to be the strongest point in favour of Mr. Khurshed Husnain on this particular part of the case that, as the parties established no new circumstances, the judgment to that extent was conclusive. It seems to me that the case depends upon the consideration of another and much more serious point. One of the contentions of Mr. P.B Das who appeared on behalf of the defendant was that this rent or tax (by whichever name it may be called) of Rs. 150 was not made the subject matter of the return under the Cess Act in the year 1928, the year when the last return was made, and therefore was not recoverable by reason of the provisions of Section 25 of the Cess Act of 1880. I (sic) think it is quite clear in the first place that no such return was made, and secondly, there is in evidence a petition filed certainly about a year after original return, by which the plaintiffs sought to amend their return. Mr. Das however contends that as it was not made within six months as provided by S. 20, it was of no avail. Whether the Collector has power or not to extend the time I am not prepared to say. No provision of the Act has been pointed out which would entitle me to hold that he was so entitled. But the fact remains that the Collector accepted the petition and there are orders in evidence which would indicate that the return was amended. In those circumstances it would be difficult to sustain the plea in bar now raised by Mr. P.B Das, more particularly by reason of the fact that facts and circumstances were not brought to the notice of the lower Court and thus entitling the Court to arrive at a final judgment with regard to the matter. Now, the other and the substantial point was that this amount of Rs. 150 was contrary to Regulation 27 of 1793 the Preamble of which commences in this way:
The imposition and collection of internal duties have from time immemorial been admitted to be the exclusive privilege of Government.
Then later:
It was however judged advisable to leave the exercise of this privilege to the landholders, Government contenting themselves with Imposing general regulations for the prevention of undue exactions; then further stating the history of the case and stating the intention to deal with this matter, it says:
In the adoption of the above arrangements, the Governor-General in Council had no intention to divest the landholders of any collections they had made, under the denomination of sayer, not in reality a duty, but a consideration for the use of grounds, shops, or other buildings belonging to them.
5. Then comes the description of various sums which have from time to time been collected. Then comes the Regulation itself, para. 2 of Article 1 of which provides:
No landholder, or other person, of whatever description shall be allowed to collect, in future, any tax or duty of any denomination; but all taxes and duties shall be hereafter levied, on the part of Government, by officers duly appointed for that purpose under such Regulations as may be passed for their guidance.
6. Then Article 2 provides:
No monthly or annual payments now made, or which may be hereafter made, for the use of land, or houses, shops, or other buildings erected thereon, being dearly of the nature of rents and not duties or taxes are to be understood to be within this prohibition, but all such rents are to be enjoyed by the proprietors entitled thereto as heretofore.
7. It is contended by Mr. P.B Das, on the one band that this Rs. 150 comes within the mischief of the Regulation, while on the other hand Mr. Khurshed Husnain contends for the respondent that it is a sum in the nature of the rent and payable for the use of the gola. Mr. Husnain relies upon the judgment or statement in the judgment in the previous case (Ex. 11-a). In that case two separate suits had been brought, one for the ground-rent proper and the other for tangiana. The learned Judge in that case observed:
But it appears to me that the liability for rent of the land on which the gola stands is prima facie so Inseparable from the liability to pay the arhut dues that nothing but the strongest evidence to the contrary would justify me in holding that appellant is not liable for such rent if he is liable to pay the arhut dues.
8. I am afraid, that gives very little assistance to the respondents, because it is clear, not only from the words which I have read but from the context in which they are found, that the learned Judge there was dealing with the question of liability and not the question of the nature of these dues. The Judge of the trial Court in that suit makes this observation:
Sukhlal, the father of Mangru, took land for constructing a gola from Babu Dayal Narain by fixing the ground-rent at 10 annas per month and took lease of the arhut at Rs. 150 a year and constructed a gola. The rent all along continued to be paid at the above rate. These two suits are being brought in accordance therewith.
9. Now, it is not denied, indeed it is quite clear, that this Rs. 150 was a consolidated amount of dues which were payable by the occupant of the gola on the sales of various articles there stored by him. This is clear from para. 5 of the plaint which runs as follows:
In the aforesaid village often some lands are given in settlement for erecting gola houses. The custom relating to the rate of settlement is that the goladar who takes settlement of the land to set up gola thereon pays to the malik 15 dams per tangi on grains, 5 dams per rupee on sale of tobacco, 2 dams per rupee on sale of mustard oil and so on. The land of the said village is settled for setting up gola in accordance with custom.
10. Now, the difficult question which I have to decide is whether this was a consideration for the use of the land or whether it was (to put it in the terms of the Regulation) tax or duty of any denomination. The fact that the amounts have been consolidated seems to me to make no difference whatever. It may be that the amount of Rs. 150 was found to be the amount which was recoverable on an average and that the landlord contented himself with that payment rather than going into some complicated accounts and recovering the actual amount which according to the custom set out in para. 5 of the plaint became due. To repeat myself, the mere fact that the sums have been consolidated seem to me to make no difference in the nature of the tax or rent by whichever names it may be properly described. Now bearing that in mind it seems to me to lead one irresistibly to the conclusion that it was tax or duty on those articles within the meaning of para. 2 of the Regulation. I repeat myself by saying that had it not been for the fact that the amount was a consolidated amount, the liability of the occupant of this gola to pay an indefinite sum according to the amount of business which he did and at certain rates according to the articles sold would lead irresistibly to the conclusion that it was something in the nature of a tax or duty. It might have been otherwise, had the landlord agreed to charge a rent for the gola on a percentage of the turn-over of the tenant. Coming to the conclusion at which I have arrived, namely that the consolidation of the amount makes no difference to the nature of the amount, I, not without hesitation, come to the conclusion that it was tax or duty within the meaning of Article 2 of the Regulation of 1793. Now, if that be so, there seems to me to be no difficulty in coming to the conclusion in regard to the previous judgment. That the previous judgment is not res judicata, it seems to me to be plain on elementary principles; as pointed out by Baron Parke in (1848) 2 Ex. 6651 at p. 680, the principle of res judicata is only a form of estoppel and it is a principle of law for which no authority is required and that there could be no estoppel against the statute. If the Regulation prohibits the recovery of this sum, the previous judgment entitling the plaintiff to recover the sum cannot stand in the way of defence of the defendants in this case with one exception which has been pointed out by Mr. Husnain in the course of his argument. If the previous case of 1872 had decided not only the liability of the defendants, but that the nature of the imposition was not such as to bring it within the mischief of the Regulation, the matter would have been concluded. But there was no such decision and, in order to rely upon the plea of res judicata, Mr. Husnain falls back on what is ordinarily known as constructive res judicata, that is to say, it was a defence which the defendants could have set up in the previous action. But as they did not, it must be presumed that the point was decided against them. But the judgment of the case of 1872 was merely a judgment which decided the defendants' liability to pay rather than the question of the nature of the sum. The point was not decided and therefore the plea of res judicata cannot be taken.
11. In my judgment, therefore, the decision of the learned Judge in the Court below was wrong and the plaintiff's case should have been dismissed to the extent of Rs. 150, and to that extent, the decree of the learned Judge in the Court below will be modified. The appeal is allowed with costs. There will be leave to appeal.
N.K/R.K
12. Appeal allowed.