BAMMIDI BAYYA NAIDU Vs. BAMMIDI PARADESI NAIDU (DIED)

JUDGEMENT

(1.) The plaintiff, a land-holder to whom the provisions of Section 3 of Madras Act VIII of 1865 apply, sues the defendants, his tenants, for rent for Fasli 1316. Under Section 7 of the abovementioned Act no suit brought to enforce the tortus of a tenancy shall be sustainable unless patta and muchilika have been exchanged, or unless it be proved that the party attempting to enforce the contract had tendered such a patta or muchilika as the other party was bound to accept, or unless both parties shall have agreed to dispense with pattas and muchilikas. Under Section 4 of the Act the patta must contain, among other things, the local description and extent of the land. The patta in the present suit gives the extent and boundaries of the land alleged by the plaintiff to be in the defendants occupation. The defendants alleged that the extent of jerayiti land entered in the patta was greater than the extent of such land held by them. The plaintiff contended that the matter was res judicata by reason of the decision in a simliar suit by him against the defendants for the rent of the two previous faslis. The pattas in that suit were similar to the patta in the present suit. In the former suit the plaintiff alleged tender of pattas and refusal by the defendants, but the defendants contended that the plaintiff did not tender pattas for the suit Faslis and that the pattas alleged to have been tendered were improper, one of the objections taken to the propriety of the pattas being that the extent of the defendant s jerayity land was much overstated. In this state of the pleadings it was incumbent upon the plaintiff under Section 7 of Act VIII of 1865 to prove the tender of such pattas as the defendants were bound to accept An issue was accordingly framed as to the tender and propriety of the patta and was found in the affirmative. Had it been found in the negative, the plaintiff s suit must have been dismissed. In the present suit an issue as to the tender and propriety of patta also necessarily arises. The patta being similar to the pattas on the previous suit and no change of circumstances being alleged, I think the plaintiff s contention should have been upheld. The finding in the previous suit that the pattas were proper, i.e., that they were such as defendants were bound to accept, was a finding that the relationship of landlord and tenant subsisted between the plaintiff and the defendants in respect of the land entered in the pattas, and I dc not think the defendants can again be allowed to put the plaintiff to proof of his title. See Venkatachalapathi v. Krishnan (1892) I.L.R. 13 M. 287. I would therefore allow the appeal.

(2.) As my learned brother takes the contrary view, the second appeal is dismissed with costs. Sankaran Nair J.

(3.) This suit is brought by the plaintiff to recover rent due for Fasli 1316 from the defendants who are tenants in possession of certain lands which the plaintiff says are held under him. The plaintiff states that he tendered a proper patta to the first defendant according to which the 1st defendant was bound to properly cultivate and raise crops in about 14 acres of land in the village of Jayakrishnapuram and pay the landlord s share. The main contention of the defendant is that the defendants hold about 5 acres of land under the plaintiff and of the rest, about 10 acres are inam lands and 8 acres are cash rent paying lands belonging to the defendants themselves. Both the lower courts have upheld the defendants contention. In fact the judge states that the plaintiff did not seriously argue before him that the patta was a proper one, or that the lands which were found by the Munsif to belong to the defendant really belonged to the palintiff. Tire question that was argued before us at great length is whether the defendants are barred from raising this plea by the decision in a previous suit.