NABIN CHANDRA KAPALI Vs. GOUR MOHAN MISTRI

JUDGEMENT

(1.) In the suit out of which this appeal arises the plaintiff sued for the recovery of produce rent of a certain parcel of land. The plea of the defendants was that the land no doubt originally belonged to the plaintiff but that by a partition between the plaintiff and his cosharers a portion of this land had fallen to a third party and that, therefore, be was not obliged to pay the whole rent claimed. The trial Court held that this question as to portion of the land being held by a third party was res judicata between the plaintiff and the defendants and decreed the plaintiff's suit in full. The defendants appealed to the District Court and that Court held that there was not sufficient material on the record to identify the land in the present suit with the land in former suit and he remanded the case for a re-trial. The trial Court accepted the defence and decreed the suit in part. The plaintiff once more appealed to the District Court. The District Court held that the question as to whether the portion of land for which rent was claimed belonged to a third party was res judicata between the parties to the suit, and he, therefore, allowed the appeal holding that the defendants were tenants of the plaintiff in regard to the whole land in suit. The effect of the finding is to decree the whole of the plaintiff's suit. The defendants have appealed to this Court.

(2.) A preliminary point has been raised that Section 153 of the Bengal Tenancy Act is a bar to an appeal to this Court. As the appeal fails on the merits it is unnecessary to decide this point. The appellants have raised three points in appeal. First of all, it is urged that the lower appellate Court was in error in holding that the defence was barred by the rule of res judicata. Secondly, it was urged that the first Court of appeal having held that the plea of res judicata was not available to the plaintiff it was not open to the Court of appeal when the case was taken up again on appeal to have entertained this plea of res judicata; and, lastly it was urged that the lower appellate Court erred in admitting in evidence certain additional evidence, namely, the plaint which has been marked Ex. (6) without giving its reasons for admitting it in evidence.

(3.) With regard to the first contention the appellants rely on the case of Nilmadhab Sarkar v. Brojo Nath Singha [1894] 21 Cal. 236. The facts of that case, however, are different. It is impossible to lay down any hard and fast rule as to whether a previous decision in a rent suit does or does not operate as res judicata. In the present case, we have just referred to, the learned Judges remarked that the case might have been different if the Court had in the previous suit definitely determined the area of the land in the defendants possession and the annual rent payable for the same. It might then be said that the determination was general and not limited to the particular years for which the rent was claimed. Now, in the present case, the point on which it is sought to establish res judicata between the parties was whether a certain portion of the land did or did not belong to a third party. This point was decided in the former suit and it cannot be said that this is a question which is limited to the particular year for which rent is claimed and, therefore, this case is distinguishable from the case relied upon by the learned vakil for the appellants. We, think that the judgment in the former rent suit does operate as res judicata between the parties. The parties are the same, the areas of the lands are the same and the defence is the same, namely, a third party holding certain portion of the whole land.