DIN DAYAL Vs. TARAK NATH

JUDGEMENT

(1.) This first appeal was brought by two defendants, Din Dayal and Debi Dayal, who were brothers forming a joint Hindu family, and Debi Dayal died; so the case was continued by Din Dayal alone as sole representative of this joint family. The appeal is against a decree of an Assistant Collector, First Class of Mirzapur District which has been passed against the appellants for excess profits as a cosharers in favour of plaintiffs cosharers. The decretal amount held to be due from the defendants-appellants for the Fasli years 1330 to 1332 was Rs. 3,077-10-2, that is roughly about Rs. 1,000 per annnm. It is in evidence that this village has practically no cash rents prevailing and rents are calculated at one-quarter of the gross produce of the land. The plaintiff's are not in possession of any cultivated area and only collected small amounts of rent amounting to about Rs. 200 per annum. The share of the plaintiffs in 1330 F were 9 annas 8 pies and in 1331 and 1332 8 annas 4 pies. The questions which have been argued before us are three in number: firstly, whether the rate at which the plaintiffs should be found liable for excess profits should be taken to be the same as the one-quarter gross produce which is the rental for the great majority of occupancy and non-occupancy tenants in this village or whether it should be taken as the lower Court has taken it on a calculation of the net income from the cultivation of this excess area, and secondly, whether this question is res judicata in view of a previous judgment of the Assistant Collector upheld by this Court on appeal. There is also a further question as to whether certain areas cultivated by the defendants, entered as non- occupancy tenure for over 12 years and occupancy tenure, ought to be considered as land, held by the defendants as tenants or as land held by the defendants as khud-kasht

(2.) We will first deal with the question of res judicata. In the previous suit before the Assistant Collector, which is printed on pp. 63 to 67 of the paper book and which was Suit No. 3 of 1919/1920 there was a case between the father of one of the plaintiff's and some others and the defendants Din Dayal and some others for recovery of profits. In this suit there was no direct issue as to the rate at which profits were to be assessed on the excess cultivation by defendants. There was an issue, issue 2: Whether the entries in the patwari papers are incorrect in respect of the tenure, etc. and an issue, issue 3: Whether the plaintiffs are entitled to the relief sought and if so to what extent.

(3.) No doubt the question did arise as to the calculation of the amount of profits on excess cultivation, but it did not arise until the patwari had given evidence and the defendants then made objections to that evidence as shown on p. 65 under issue 3. We do not consider that a question which is decided in this manner can be stated to have been definitely in issue in this Suit No. 3 of 1919/1920, and accordingly, as there was no clear issue framed on the point between the parties, we do not consider that the finding can be held to be res judicata. Accordingly we think that we should decide the matter on the evidence in the present record.