GIRISH CHANDRA SINGHA Vs. MOHAMMAD RAUSAN MIAN

JUDGEMENT

(1.) This is an appeal by the plaintiffs from a decision of the District Judge of Birbhum modifying a decision of the Munsif, Second Court, of Rampurhat and arises out of a suit for rent for the period 1327-1330 B.S. in respect of ten different holdings described in the schedule to the plaint. The defence set up in regard to four of these jamas described as chha, ja, jha and ena was that there was no relation of landlord and tenant, while as regards the remaining six jamas the plea was taken that the rate of rent had been illegally enhanced in contravention of the provisions of Section 29, Ben. Ten. Act, and that the plaintiff's could only recover rent in respect of them at the admitted rates. The trial Court found that the four jamas were included in the plaintiff's estate and that the relation of landlord and tenant existed. As regards the remaining six jamas it found that, with the exception of two, viz, ka and uma, they did not contravene Section 29, Ben. Ten. Act. As to ka the Munsif found that the original rent was Rs. 5-2-6 per annum, while the rent claimed was Rs. 6-2-17 gandas, and that it therefore contravened Section 29. Similarly as regards uma the finding was that the original rent was Rs. 2-4-0 whereas the rent claimed was Rs. 10-4-6. The Munsif accordingly gave a decree in respect of these two holdings at the admitted rates. On appeal by the defendants the District Judge dismissed the appeal as regards the four jamas chha, ja, jha and ena on the ground that they had not been included, in a Road Cess Return filed by the plaintiffs some years previously and that as a consequence no suit would lie under Section 20, Cess Act (Bengal 9 of 1880).

(2.) The plaintiffs filed a cross-objection as to jotes ka and uma which was dismissed, the District Judge holding in agreement with the Munsif that a decree-passed in a suit in the year 1890 was a nullity. A decree was therefore given in respect of these two jotes at the rates admitted by the defendants. The plaintiffs have now preferred this second appeal and two points have been taken on their behalf. It is contended, firstly, that the Court of appeal below erred in law in holding that the compromise decree 1890 did not operate as res judicata, and in treating it as a nullity. Secondly it has been urged that under Section 20, Cess Act, the plaintiffs were precluded from realising rent in respect of the four jamas chha, ja, jha and ena. With regard to the first contention we are of opinion that it is well-founded and must prevail. We have no hesitation in holding that the compromise decree of 1890 operates as res judicata, and in support of the view which we take may refer to recent decisions of this Court Ishan Chandra V/s. Moomraj Khan AIR 1925 Cal 101 and Nawabzada Md. Hossain V/s. Khana Kazi . The District Judge has referred in his judgment to the former of these cases but preferred, as he himself expresses it, to follow an earlier decision reported in Surjeeg Saran Lal V/s. Dukhit Mahto (1913) 18 I C 809. As this latter case was referred to in the subsequent decision reported in Ishan Chandra V/s. Moomraj Khan AIR 1925 Cal 101, and as there had in the interval been a Pull Bench decision Hriday Nath Roy V/s. Ram Chandra Barma AIR 1921 Cal 34, which had shaken the decision in the Surjeeg Saran Lal V/s. Duhhit Mahto (1913) 18 I C 809, we think that the District Judge should have followed the later decisions. In the case reported in Mahmed Hossein V/s. Khana Kazi AIR 1928 Cal 606 the Full Bench decision was expressly referred to and was mentioned as a reason for not following the previous decision reported in Surjeeg Saran Lal V/s. Dukhit Mahto (1913) 18 I C 809. With regard to the second contention the terms of Section 20, Cess Act seem to be explicit. The four jotes chha, ja, jha and ena were not entered in the plaintiff's return under the Cess Act (Ex. A), and, that being so, the plaintiff's were debarred under that section from suing for rent in respect of them. The words in the section are "suing for, or recovering." It seems clear therefore that the inclusion of the holdings in question was a condition precedent not only to the recovery of rent but to the institution of a suit for rent so far as they were concerned. What then are the facts? The relevant facts are that a Road Cess Return had been filed by the plaintiff's as far back as 1905 at the time of the last Revaluation and that Return did not include the jamas in question. The plaintiffs were precluded therefore from suing for the rent of these jamas.

(3.) On behalf of the appellants two contentions have been put forward in this connexion. Firstly, it is argued that, as the point was not taken in the written statement, it ought not to have been entertained, and secondly, it has been urged that in any case the defect, if any, was rectified by the filing of the supplementary return in which these four jamas were included. As regards the first contention it appears to be correct that the point was not raised in the pleadings, but it is clear from a passage in the judgment of the Munsif at p. 3 of the Paper-Book that the point was taken, and it is a point which goes to the root of the matter and affects jurisdiction. The second contention is, it is plain, based upon an erroneous view of the facts. The supplementary cess return was filed before the Collector on 17 March 1926 during the trial of the suit, and the copy of that Return was filed on 20 August 1926 in the lower appellate Court. That copy was never filed in the trial Court, and the Munsif had therefore no knowlege of any such return. A supplementary Return filed not only not before the institution of the suit but after the suit had been disposed of and after an appeal had been filed could not have the effect of getting rid of the disability imposed by Section 20 of the Act. There is no substance therefore in either of these contentions.