WOOMESH CHANDRA MAITRA Vs. BARADA DAS MAITRA

JUDGEMENT

(1.) This second appeal arises out of a suit brought by the plaintiffs under the following circumstances:--The defendant holds a putni under the plaintiffs, who sue him for arrears of rent upon the basis of a kabulyat, at the rate of Rs. 190-6-6 including Iswar Bhawanipur's mamuli, Rs. 3-7-6, and claim payment by ten instalments. The defendant alleges that the kabulyat is not binding upon him, and pleads that the mamuli included in the claim as rent is an illegal cess. It appears that previously there was another suit between the parties in which the plaintiffs had claimed rent and had obtained a decree for Rs. 190-6-6 payable in four instalments. In that suit the kabulyat was declared to be not binding on the defendant.

(2.) The Munsif in the present case held that the question relating to the kabulyat and the instalments was res judicata, and overruling the objection of the defendant that the mamuli was an illegal abwab, made a decree in favour of the plaintiffs for Rs. 190-6-6 payable by four instalments as decreed in the previous litigation. He held further that it had already been found that the kabulyat was not binding on the defendant, and that the plaintiffs were estopped from reopening the question. He held also that, as the defendants had not objected in the former suit to any portion of the rent being an illegal cess, he was barred from raising that plea in the present action.

(3.) Both parties appealed and the District Judge dismissed the defendant's appeal as well as the cross-appeal of the plaintiffs, and affirmed the judgment and decree of the First Court.