KRISHNA CHANDRA ROY Vs. SURENDRA NATH BANDOPADHYA

JUDGEMENT

(1.) This appeal by the plaintiff landlord arises out of a suit for recovery of arrears of rent and cesses after settlement of rent. The defence was that the defendants having been dispossessed 1 by the plaintiff from a great portion of the Sikmi taluk in suit, rent should be suspended and that the plaintiff was not entitled to any relief asked for in the suit. Both the Courts below have dismissed the suit. The facts found are that the Sikmi taluk held by the defendants comprises three mauzas, Nan-nar, Gaoail and Kaliara or Kulla. The plaintiffs long time ago dispossessed the defendants from the two mauzas Nannar and Gaoail and also from a part of Kulla. On this finding the Courts below have dismissed the plaintiff's suit holding that they are entitled to recover neither rent nor cesses from the defendants and that therefore their suit for assessment of rent must fail.

(2.) The plaintiff's have appealed and it is argued on their behalf that the view taken by the Courts below on law is not correct. It appears that in 1918 a suit for rent was brought by the plaintiffs against the defendants. That suit ended similarly and was dismissed in all the Courts including this Court. It was there held that the plaintiffs having dispossessed the defendants from a portion of the leasehold were not entitled to recover any rent or cesses in respect thereof. At the time of the hearing of the appeal, being Second Appeal No. 2300 of 1920, by this Court, a point was raised that the defendants having been out of possession of the disputed land for more than 12 years, they could not plead suspension of rent. It was observed in the judgment of this Court on this point that this point was not raised in the suit, and therefore could not be considered then but that the plaintiffs might raise it in a properly constituted suit. It is apparent that due to this observation in the judgment the present suit has been brought.

(3.) In this suit the plaintiffs allege that the defendants according to the lease should have been in possession of about 23 acres of land. But now it has been found by the district settlement that they are in possession of about 88 acres. The plaintiffs therefore pray that the rent of the quantity of land in possession of the defendants may be assessed and a decree made in favour of the plaintiffs for the years in suit. The Courts below have held that the plaintiffs claim for assessment of rent is barred by the principle of res judicata.