PROSANNA KUMAR MISTRI Vs. SUDHANGSU KUMAR ROY CHOUDHURY

JUDGEMENT

(1.) This appeal is on behalf of the legal representatives of defendant No. 9, in a suit instituted by the plaintiffs for recovery of rent for the years 1332 to 1335 B.S. The plaintiffs are the 10 annas co-sharer landlords and they instituted the suit for recovery of their share of the rent at the rate of Rs. 70-12-6 per year in their share making the six annas co-sharer landlords parties defendants. In the plaint they state that they have separate collections and that they have not been able to ascertain what amount of rent is due for the period in suit to their co- sharers. In para. 3 of the plaint they state that Nrishna Mohan Mistry and another, the predecessors-in-interest of the tenant defendants, executed a kabuliyat in favour of their predecessor-in-interest on Sravan 26, 1299, B.S. by which they stipulated to pay rent at the rate of Rs. 4 per bigha on an area of 20 bighas 1 catta 5 chittaks 13 1/2 dhurs of land, that is, Rs. 80-5-4 a year. They further state that the lands of the tenancy have been found now to measure 28 bighas 6 cattas 1 dhur. They further state that in the kabuliyat there is a stipulation that if on measurement the lands held by the tenants be found to be more, the tenants bound themselves to pay rent at the same rate according to the area found on measurement. On the basis of this contract they say that the rent would be Rs. 113-3-4, and in their share Rs. 70-12-6 a year. Both the Courts below have found that the area in the possession of the defendants is 28 bighas 6 cattas 1 dhur according to the local standard of measurement but an allowance of 5 per cent. has been made in favour of the tenants and the plaintiffs have been given a decree at the rate of Rs. 67-4-9 per year in their share. There is no kabuliyat in favour of the six annas landlords.

(2.) Before me the appellants contend that the plaintiffs cannot in the suit as framed claim at a rate of more than 10-16 of Rs. 80-5-4 per year. They say that (1) Section 188 of the Bengal Tenancy Act is a bar to their claim for additional rent inasmuch as the six annas co-sharers landlords have not joined as plaintiffs and that Section 148-A cannot help the plaintiffs and (2) that the said claim is barred by res judicata.

(3.) It would be convenient to deal with the last point first. The facts bearing upon the said question are the following. In the year 1925 the present plaintiffs and the six annas co-sharer landlords as plaintiffs instituted a suit for additional rent for additional area under's 52 of the Bengal Tenancy Act. In the plaint of that suit the kabuliyat of Sravan 26, 1299, was also pleaded. This suit was carried on appeal to this Court. It was held that the claim under Section 52 of the Bengal Tenancy Act was not admissible as the tenancy, which is a ryoti one, included undivided plots of land. The claim on the basis of the contract as evidenced by the said kabuliyat was also held not maintainable on the ground that the said kabuliyat had not been executed in favour of all the landlords who were then suing jointly for additional rent [Benode Kumar V/s. Ganga Charan . On these facts the appellants contend that the present suit is barred by the rule of constructive res judicata. The question then is whether the claim as laid in this suit might and ought to nave been laid in the suit of, 1925. The kabuliyat was pleaded there and the claim was laid on its basis also in that plaint but the Court held that the 10 annas co- sharer landlords could not succeed on its basis as they had joined with them the six annas co- sharers who were not parties to the kabuliyat. The Court in effect held that the claim on the basis of the kabuliyat could not be pleaded in that suit as framed. I do not see how after this it can be urged that the present claim is barred by the rule of constructive res judicata. In this view of the matter it is not necessary to consider how far the decisions which lay down that in constructive res judicata there must be identity of the subject-matter. Surjeram Marwari v. Barhamdeo 1 CLJ 337, Gurudeo V/s. Ghandrikh Singh 5 CLJ 611 : 1 Ind. Cas. 913 : 36 C 193, have been affected by the decision of the Judicial Committee in Fateh Singh V/s. Jagannath . I hold accordingly that there is no substance of the appellants contention on this point.