BECHA RAM SAHU Vs. CHAMRU URAON

JUDGEMENT

(1.) THIS is an appeal on be-half of the plaintiff in a suit for rent. The sole point in controversy between the parties is, whether the claim for recovery of raikumats is barred by the doctrine of res judicata. It appears that in a previous suit for rent against some of the present defendants, a claim was put forward by the plaintiff for the recovery of raikumats. The claim was resisted by the defendants and an issue was raised whether (he defendants were liable to pay any raikumat. The Court came to the conclusion that raikumats were payable and made a decree accordingly. In the present litigation, the raikumats have been claimed again and the claim has been resisted. The Court of first instance allowed the claim but that decree has been reversed by the Judicial Commissioner on the authority of the decision in Orjoon Sahoo v. Anund Singh 10 W.R. 257. In support of the appeal, it has been contended that the decision in a suit for rent may operate as res judicata and that the answer to the question whether the decision in a particular case does or does not operate as res judicata depends upon the scope of the issue raised and the determination thereon. In our opinion, there is no room for controversy that this contention is well founded. The cases of Kali Kumar v. Bidhu Bhushan 10 Ind. Cas. 382 : 16 C.L.J. 89; Joy Kali v. Hemangini 10 Ind. Cas. 363 and Raja Padmanand Singh v. Radhe Singh 9 C.W.N. 469 support the proposition that, if in a suit for rent a question has been raised as to the incidents of the tenancy, not merely in relation to the claim for that particular year, but from a wider point of view, the decision thereon does operate as res judicata. The case of Orjoon Sahoo v. Anund Singh 10 W.R. 257 is not opposed to this view. Nor is the case of Woomesh Chandra Maitra v. Baroda Das Maitra. 28 C. 17 an authority for the contrary proposition. In the case last mentioned, it was found that the question of the true character of certain sum claimed as rent was not raised in the previous litigation between the parties. In the subsequent suit, the question was raised and when it was contended that the question was res judicata, it was held that as, there had been no previous adjudication, the earlier decision did not operate as res judicata. Nor could the doctrine of constructive res judicata apply, because the subject-matters of the two suits were different. Similar remarks apply to the case of Ricketts v. Ranes-wir Malta 28 C. 109. It may ha conceded that there are isolated observations in the decision of Sir Comer Petheram, C. J, in the case of Radha Prosad Singh v. Bal Kowar Koeri 17 C. 726, which may lend some apparent support to the contention that a judicial determination that a particular sum claimed as abwab is not payable because it is an abwab, does not operate as res judicata. It is difficult to believe, however, that the learned Chief Justice could have intended to lay down any such sweeping proposition and unquestionably it does not follow from the decision of the Judicial Committee in Tilukhdhari Singh v. Chulhan Mahton 17 C. 131 : 161 I.A. 152, to which he made reference. In the case before us, as we have already explained, the claim for recovery of raikumats was disputed in the previous suit. New, raikumat is legally recoverable if it is payable under a custom as is clear from the decision in the case of Bhudhna Orawan Mahtoon v. Juggessur Doyal Singh 24 W.R. 4. The decision, therefore, in the earlier suit that raikumat was payable involved, by implication at any rate, a decision that the raikumat claimed was payable under a custom; even if the decision be assumed to have been erroneous, it was a decision upon a mixed question of fact and law, and operates as res judicata. Aghore Nath v. Kamini Debi 11 C.L.J. 461 : 6 Ind. Cas. 554. Consequently, it is not open to such of the defendants, as were parties to the previous litigation, to contest the claim of the plaintiff in the present suit on the ground that a raikumat is not leviable under the law. No doubt, as regards the other defendants who were not parties to the previous litigations, it was open to the Judicial Commissioner to find, as he has found upon the evidence, that raikumat is not payable; but that determination is obviously of no benefit to the other defendants, who are bound by the decision in the previous suit. There is no anomaly involved in this position, because these defendants are in occupation of separate parcels, and a joint suit has been brought against them only by reason of the special provisions of the Chota Nagpur Tenancy Act. In fact, the suit is really in the nature of a composite suit for recovery of rent and raikumat against different defendants for different parcels of land.

(2.) THE result is that this appeal is allowed, the decree of the Judicial Commissioner varied and a decree made for raikumat against those defendants only who were parties to the previous litigation. As regards the defendants who were not parties to the previous litigation, the decision of the Judicial Commissioner will stand con firmed. THEre will be no order as to costs.