SASHI BHUSAN BOSE Vs. PARASULLA MULLICK

JUDGEMENT

(1.) THIS appeal arisess out of a suit for rent. The question for the Court below was whether the plaintiffs were entitled to get rent at the rate of Rs. 103-6-6 or, as asserted by the defendant, at the rate of half that sum year by year. According to the plaintiffs they were the sole landlords of the holding. According to the defendant one Kangali Fakir, spoken of in the Court of first appeal as Fatik, was a co-sharer of the plaintiffs and the share of the plaintiffs was, therefore, 8 annas only. The rent suit was brought on the 29th April 1916, and was for the rent of the years 1320, 1321 and 1322, corresponding roughly with April 1914 to April 1916. The suit was decided on the 13th June 1917. It next appears that Kangali brought a suit against the plaintiffs for declaration of his title to the extent of 8-annas share in the superior interest under which this tenancy was held. That was decided on the 14th June 1916 in the Court of first instance, the decree being in favour of Kangali It was decided by the Appellate Court on the 23rd July 1917, The Appellate Court reversed the decree of the Court of first instance, finding that the plaintiffs were the sole owners of this property. On the strength of the decree made by the Court of first instance on the 14th June 1916, the Munsif in the rent suit held that Kangali was a co-sharer of the plaintiffs to the extent of 8 annas and, therefore, the plaintiffs can only get half the rent which was claimed in respect of the years from April 1914 to April 1916. Whether that decision was correct may be open to doubt. In any case the plaintiffs preferred their appeal on the strength of the decree made in the title suit in the Appellate Court in their favour. They produced before the Subordinate Judge the decree that had been made in their favour and on the strength of that decree asked the Subordinate Judge to modify the decree of the lower Court and decree their suit in full. The Appellate Court, while finding that they were entitled to have their suit decreed in full, refused to admit the decree of the Appellate Court in the title suit in evidence. Here we think he is wrong. His decision has been attempt- ed to be supported before us by reference to the cases reported as Kessowji Issur v. G.I.P. Railway 31 B. 381 : 9 Bom. L.R. 671 : 11 C.W.N. 721 : 6 C.L.J. 5 : 4 A.L.J. 461 : 17 M.L.J. 347 : 2 M.L.T. 435 : 34 I.A. 115 (P.C.), Krishnama Chariar v. Narasimha Chariar 31 M. 114 : 3 M.L.T. 308 and Jagrani Koer v. Durga Parshad 22 Ind. Cas 103 : 36 A. 93 : 16 O.C. 386 : 12 A. L.J. 125 : 26 M.L.J. 153 : 15 M.L.T. 125 : (1914) M.W.N. 137 : 19 C.L.J. 165 : 18 C.W.N. 521 : 16 Bom. L.R. 141 : 1 O.L.J. 57 : 41 I.A. 76 (P.C.). These decisions to our minds have no bearing on the present case.

(2.) WE, therefore, set aside the decree of the Subordinate Judge in the present case and direct that the plaintiffs do obtain a decree for full rent at the rate of Rs. 103-3-6 pies per annum for the years in suit--with cess 2 pice in the Rupee--and damages at 25 per cent. with costs in all Courts.