BHOLANATH DUTTA Vs. SMNARAYAN KUMARI DASSI

JUDGEMENT

(1.) THESE five analogous appeals by the plaintiff, namely, Second Appeals Nos. 416 to 420 of 1938 arise out of five suits instituted for the recovery of 8 annas share of rents, cesses and damages on the allegation that there existed five separate tenancies bearing respectively the jamas of Rs. 22-8-0, Rs. 49-12-0 odd gandas, Rs. 19-11-0 odd gandas, Rs. 5-6-17 1/2 gandas and Rs. 17-4-0 odd gandas. The Second Appeals Nos. 417, 418 and 420 of 1938 together with the suits out of which they arose were withdrawn at the time of the hearing, so that it is now the remaining appeals only, that is, Second Appeals Nos. 416 and 419 of 1938, arising respectively out of suits Nos. 3033 and 3062 of 1936 with which I am concerned. In the Court of the trial the defence taken regarding these suits was that the original jamas of Rs. 22-80 and Rs. 5-6-17 1/2 gandas claimed by the plaintiff had long ceased to exist, m these jamas were consolidated with the "jamas of certain other lands in the year 1920, and" a bigger jama of Rs. 98-0-6 was formed. The plaintiff in support of his claim filed two previous judgments in rent suits Nos. 1944 and 3072 of the year 1932, relating respectively to the subject-matter of the present suits Nos. 3033 and 3062 of 1936. From the said judgments and decrees it is apparent that the defendants had failed to substantiate the objection raised in the suits of 1932, which was identical with the objection which has been taken in the present suits, namely, that there was an amalgamation with various other jamas in the year 1920, and a bigger jama of Rs. 98-0-6 was constituted in respect of the jamas of the aforesaid suits. The contesting defendants on the other hand in support of the assertion of amalgamation of rents and lands, as stated above, filed the record of rights finally published in March 1934.

(2.) IN the present suits there were only two points for determination set out in the judgment of the trial Court, namely, (1) Is there any relationship of landlord and tenant between the parties to each of these suits in respect of the jama claimed thereon, and is the plaintiff entitled to recover the rent at the rate as claimed by him in each of them? (2) What relief, if any, is the plain, tiff entitled to? Both the Courts below dismissed the suits, holding that the record of rights prevailed over the rent decrees of 1932. From that decision the plaintiff preferred the present appeals. It has now been urged on behalf of the appellant that the decision of 1932 operated as res judicata and that the Courts below were in error in brushing it aside in the absence of any assertion of fresh arrangement between the parties subsequent to the decision of 1932. Reference was made in this connexion to Shib Chandra V/s. Lakhi Priya Guha and Jaladhar Bhowmick V/s. Birendra Nath ( 21) 8 A.I.R. 1921 Cal 761. IN my opinion the contention of the appellant is well founded and should be given effect to. After all, the record of rights merely raises a presumption and it cannot supercede the decision of the Civil Court especially when it is given after contest and on a specific issue framed in respect of any question. The defence of taking a settlement in 1920 was negatived in the suit of the year 1932. The defendants in the circumstances should not be allowed to raise the same defence over again in the present suits. The decision in Gnanada Gobindo V/s. Nalini Bala ( 26) 13 A.I.R. 1926 Cal 650, cited by the respondent does not appear to me to lay down anything contrary to the above view. I accordingly allow these appeals and decree the suits Nos. 3033 and 3062 of 1936 in respect of the plaintiff's 8 annas share with regard to the jamas of Rs. 20-13-16 gandas and Rs. 5-6-171 gandas as ascertained in the previous suits of 1932. I assess the hearing-fee at one gold mohur in each case.