PRABHU NARAIN SINGH Vs. SUNDAR PANDEY

JUDGEMENT

(1.) This is an appeal on behalf of the defendants in a suit for declaration that the rent payable by the plaintiffs to their landlord was Rs. 59-11-3 and not Rs. 80-4-6 a year. The plaintiffs also sought for a declaration that the lands of their tenancy had been misdescribed in previous proceedings and that in fact parcels included therein had been excluded whereas parcels not really included had been mentioned as included in their holdings. The Courts below have made a decree in favour of the plaintiffs which is now assailed on behalf of the defendants on the ground that the question of the rate of rent annually payable by the plaintiffs is res judicata and is not open for consideration in this suit.

(2.) In order to determine the validity of this objection, it is necessary to state that on the 29th October 1906, the rent was settled by a Settlement Officer under Section 10, Sub-section 2, of the Bengal Tenancy Act. Subsequently, on the 23rd December 1907, the landlords defendants obtained a decree for rent against the respondents. That decree was made on the footing that the rent payable had been correctly determined by the Settlement Officer at Rs. 80-4-6. The Subordinate Judge has held that the decision of the Settlement Officer is conclusive between the parties and that the decree in the subsequent suit for rent does not operate as res judicata. In his opinion, the cases of Kali Roy v. Pratap Narain 5 C.L.J. 92 and Maharani Beni Pershad v. Raj Kumar Chowbey 6 C.W.N. 589 show that a decision upon the question of rate of rent in a suit for rent does not operate as res judicata in a subsequent suit between the parties in which the rent for a later period is claimed. The view taken by the Subordinate Judge is, we think, manifestly erroneous. As was pointed out by this Court in the case of Hara Chandra v. Bepin Behari Das 13 C.L.J. 38 : 6 Ind. Cas. 860. whether or not the decision in a, suit for rent operates as res judicata upon the question of the amount of rent annually payable, depends upon the scope of the issues raised and decided. If the question raised and decided relates to the amount recoverable for the particular years in dispute, the decision does not operate as res judicata. On the other hand, if the question raised is as to the amount of rent annually payable, the decision clearly operates as res judicata. In support of these propositions, it is sufficient to refer, amongst the earlier decisions, to the judgment of Mr. Justice Banerjee in Rajendra Nath Ghose v. Tarangini Dasi 1 C.L.J. 248 No doubt, as observed by the Subordinate Judge, the case of Brahmanunda Mahapatra v. Arjun Raut 1 C.L.J. 310 indicates that the decision of the Settlement Officer also has the effect of a final decree between the parties under Section 107 of the Bengal Tenancy Act, But in the case before us, the decision of the Settlement Officer has been construed and it has been held by a Court of competent jurisdiction that the Settlement Officer settled the rent at the rate of Rs. 80-4-6. If this decision related not merely to the years for which rent had been claimed but was in substance a decision as to the amount of rent annually payable by the tenant to the landlord, clearly it operates as res judicata. An examination of the plaint in the suit for rent as also of the judgment plainly shows that the decision had a much wider scope than that attributed to it by the learned Vakil for the respondents. The Court held that it was established by the documents filed by plaintiff that the yearly rent was fixed at the rate claimed. The Court also held that so long as the order directing the defendants to pay rent at the rate of Rs. 80-4-6 was not set aside, he was bound to accept this decree as fixing the rent of the tenancy. This decision manifestly is a decision upon one of the most fundamental incidents of a tenancy, namely, the amount of rent payable annually by the tenant to the landlord. The learned Vakil for the respondents has, however, argued that the object of the suit is to have it declared that the decree of the Settlement Officer was fraudulent and that consequently it is not binding upon them. No doubt, in the plaint, allegations of fraud were made and it was asserted that the decree of the Settlement Officer as also the petition of compromise filed before him were vitiated by fraud. The Court of first instance held that there was a great likelihood that fraud had been practised, but the Court was not prepared to hold upon the evidence that fraud had actually been committed. But even if it be assumed for a moment that the decree of the Settlement Officer was fraudulent, the respondents are in a position of inextricable difficulty. In the suit for rent, the plaintiffs landlords founded their claim upon the decision of the Settlement Officer. It was open to the defendants to challenge that decree on the ground of fraud. That they might-have done so is clear from the provisions of Section 44 of the Indian Evidence Act, as interpreted in the cases of Nistarini Dassi v. Nundo Lall Bose 26 C. 891 : 3 C.W.N. 670 and Rajib Panda v. Lakhan Sendh Mahapatra 27 C. 11 : 3 C.W.N. 660; whether they ought to have done so, must depend, as was pointed out by their Lordships of the Judicial Committee in the cases of Mahabir Pershad Singh v. Macnaghten 16 C. 682 : 16 I.A. 107 and Kamsewar Pershad v. Raj Kumari Ruttan Koer 20 C. 79 : 19 I.A. 234 : 64 R.R. 213 upon the circumstances of the particular case. Three useful tests were suggested by Vice- Chancellor Wigram in the case of Henderson v. Henderson (1843) 3 Hare 100 at p. 115 : 6 Q.B. 288 : 13 L.J.Q.B. 274 : 9 Jur. 755. These tests are, whether the party who seeks to re- open the matter in controversy could have with reasonable diligence raised the matter, whether he had a fair opportunity to obtain an adjudication upon the matter and whether the question was one which formed the proper subject of litigation in the previous suit. In the light of these tests, it is obvious that the plaintiffs not only might but ought to have raised the question of fraud in the previous suit for rent. Consequently, it is not open to them now to maintain a separate suit for the adjudiction of this question. No doubt, cases are to be found in the books, notably those of Kailash Mondul v. Baroda Sundari 24 C. 711 : 1 C.W.N. 565 and Woomesh Chandra Maitra v. Barada Das Maitra 28 C. 17 which lay down in broad terms that the doctrine of constructive res judicata does not apply to rent suits, because the claim for rent for each successive year constitutes a recurring cause of action. One of these cases, however, was doubted in Jamadar Singh v. Serazuddin Ahmad 12 C.W.N. 862 : 8 C.L.J. 82 and it is obvious upon first principles that the broad proposition deducible from the two cases mentioned cannot be maintained. In the case before us, we must hold that the question of fraud might and ought to have been raised in the suit for rent. We desire to add, however, that upon an examination of the record, we are by no means satisfied that the decree of the Settlement Officer could have been successfully impeached on the ground of fraud. There may be good reason to hold that the decree of the Settlement Officer was in favour of the plaintiffs; their real grievance is that the Court which tried the suit for rent misunderstood the effect of that decree, and on the basis of the petition of compromise, which, they now allege, was never signed by them and had never been accepted by the Settlement Officer, the Court made a decree for rent at a higher rate. If this be the correct view of the facts, it is obvious that the true object of the plaintiffs is to assail the decision in the rent suit as based upon an erroneous view of the true effect of the decision of the Settlement Officer. But it is clear that it is not open to them now to contest the validity of that decision on any such ground If authority is needed for such an elementary proposition, reference may be made to the case of Aghore Nath Mukerjee v. Kamini Debi 11 C.L.J. 461 : 6 Ind. Cas. 554. Whether, therefore, the suit be treated as one for declaration that the decree of the Settlement Officer had been obtained by fraud or whether the suit be treated as one for declaration that the rate of rent had beep erroneously determined by the Court which tried the previous suit for rent, it is obvious that this suit cannot be maintained.

(3.) The result is that this appear is allowed, the decree of the Court below modified, and the suit dismissed in so far as the plaintiffs seek for a declaration that the annual rent payable is Bs. 59-11-3 and not Rs. 80 4-6. In so far as the Court below finds that the land of the tenancy had not been properly described, the decree has not been assailed before us and will stand. As the suit has substantially failed, the plaintiffs must pay the defendants their costs in all the Courts.