DHIRENDRA CHANDRA RAI Vs. NAWAB KHAJA HABIB-ULLAH

JUDGEMENT

(1.) These two appeals are by the defendants and arise out of two suits for rent. The suit out of which Appeal No. 2500 arises was for rent for about 213 acres of land comprised in permanent miras tenure created in 1864 A. D. in favour of the predecessor of the defendants at a rent of Rs. 359 odd. There has been gradual accretion of some lands contiguous to the lands of the miras in the bed of a river and the defendants are entitled to those lands as an increment to their tenure. The plaintiffs did not include these accreted lands in their suit for rent for the miras. It is argued on behalf of the appellants that the plaintiffs were bound to give the extent and boundaries of the land in their suit for rent under Section 148 of the Bengal Tenancy Act, and as the accreted lands are an increment to the tenure the plaintiffs were bound to include those in their suit, and as they did not do so the suit ought to be dismissed. We do not think that the contention is sound. The plaintiffs sued for rent for the lands let out under the lease of 1864 A. D. of which a proper description was given in the plaint. The fact that they might have asked for increased rent for the accretion to the tenure does not impose on them the penalty of having their suit for rent for the lands actually dismissed This appeal, therefore, fails and is dismissed with costs.

(2.) The Appeal No. 2499 arises out of a suit for rent for about 98 acres of land at the rate of Rs. 550 odd. These were lands gained by gradual accession from a river and are contiguous to the lands for which the other suit was brought. The lands were brought under diara operations and formed into a separate estate of which the plaintiffs took settlement from Government. The liability of the defendants to pay the rent is thus set forth in para. 2 of the plaint: "The defendants have a miras taluk recorded at the annual rent of Rs. 550 3-0, in respect of 987 acres of land...in 5/1 mouja Kistakati bearing No. 2436...and the same was recorded in khewat No. 2 and the defendants are in possession thereof." It is not necessary to set out the pleas taken in defence. The lower Appellate Court has overruled the objections taken by the defendants and passed a decree in favour of the plaintiffs affirming that of the Trial Court. It found that the diara officer fixed the rent payable by the defendants as claimed, which is fair and equitable and that the defendants are liable to pay rent at that rate. The grounds urged by the appellants against the decree are (1). The suit of the plaintiffs is barred as res judicata. (2) The defendants are not liable to pay the rent fixed by the Revenue Authorities for the lands and the plaintiffs can only claim for increase of rent under Section 52 of the Bengal Tenancy Act. (3) The lands being an increment to the old tenure of the defendants separate suit for the rent of these lands is not maintainable.

(3.) The plea of res judicata is based on the judgment of the Appellate Court in R. Appeal No. 30 of 1912 arising out of a previous rent suit. The pleadings in the suit have not been filed nor the judgment of the Trial Court. It is not clear from the judgment produced what the issues in the rent suit were and form the materials on the record, ho it is not possible to hold, that the present suit is barred by res judicata. This ground must, therefore, fail.