BIBHUTI BHUSAN DUTTA Vs. UDAY CHAND MAHATAP

JUDGEMENT

(1.) This is an appeal by the plaintiff zamindar in a suit for rent against the defendant patnidar in respect of certain resumed chowkidari chakran land. The only point at issue is what is the rate of rent payable by the defendant to the plaintiff. The patni was created in 1847. In 1899 the land of which the rent is now in dispute was resumed by Government as chowkidari chakran land and assessed to land revenue. Thereafter in 1905 the then patnidar Anath Bandhu Banerjee took settlement of the resumed land from the plaintiff agreeing to pay the revenue assessed by the Government and also a half of that amount as profit to the zamindar. The revenue assessed by the Government was Rs. 25-7-0. According to the kabuliyat of 1905 the plaintiff claimed that the defendant is liable to pay rent at the rate of Rs. 38-2-6. The defendant who purchased the patni in 1916 at an auction sale under Regn. 8 of 1819 pleaded that the greater part of the land which was resumed as chowkidari chakran land was really mal land of the patnidar and that on a correct view the land liable to resumption by Government would be found to be about 1/3 of what was actually resumed and the Government revenue would accordingly be reduced. The defence has relied on the decree of a suit which was instituted in 1918 by the defendant patnidar against the Secretary of State, the plaintiff zamindar and certain other persons in which the claim was that of 34 bighas resumed by Government;about 24 bighas odd were mal lands of the patni and that the amount due to the Government for the chowkidari chakran lands would be only about Rs. 8. The trial Court found on a consideration of the evidence that the patnidar was liable to pay only Rs. 93-0 per annum as Government revenue on the resumed lands. As to the rent payable to the plaintiff zamindar it was agreed between the parties in the trial Court that the plaintiff would be entitled to get from the patnidar the amount due as Government revenue plus half of that sum as profit of the plaintiff. Against that decision, holding that the Government revenue on the resumed lands was Rs. 9-3-0 only, there was an appeal by the Secretary of State, and the District Judge Mr. Cammiade by his judgment dated 4 December 1922 allowed the appeal of the Secretary of State and held that the land revenue due was Rs. 25-7-0.

(2.) In second appeal this Court reversed the decree of the Court of appeal below and remanded the appeal for re-hearing. The appeal was re-heard by Mr. B.K. Basu, District Judge, who by his judgment dated 18 August 1928 allowed the appeal of the Secretary of State and held that the land revenue payable was Rs. 25-7-0. The zamindar did not appear in that appeal. The patnidar made a second appeal to the High Court. The Secretary of State alone defended the appeal. The zamindar did not appear. The High Court by judgment dated 16 December 1930 upheld the decree of the District Judge and dismissed the appeal as against the Secretary of State. The High Court however passed the following order: The appeal in the lower appellate Court was made by the Secretary of State alone. The other defendants did not prefer any appeal before the District Judge and therefore they are not bound by the decree of the Subordinate Judge.

(3.) The Court of appeal below held that as the trial Court in the suit of 1918 found the amount of revenue payable to the Government was Rs. 9-3-0 the amout of rent payable by the plaintiff was Rs. 9-3-0 plus half of the amount, that is, Rs. 13-12-6 and that the plaintiff was not entitled to rent at the rate of Rs. 38-2-6 as claimed. It is urged on behalf of the plaintiff that the learned Subordinate Judge was in error in holding that the observation of the High Court in the judgment of 16 December 1930 is res judicata in this matter, that on a proper perusal of the judgment of the trial Court in the suit of 1918 it would be found that the matter is not res judicata, for the question of rent payable by the defendant to the plaintiff was not directly in issue in that suit. There it was agreed between the patnidar and the zamindar that the rent payable by the defendant patnidar to the plaintiff zamindar would be made up of two sums: first, the amount payable as revenue to the Government for the chowkidar chakran lands; and secondly 50 per cent of that sum as profit to the zamindar. The issue between the patnidar and the Secretary of State was as to the amount of land revenue. The trial Court decided that the land revenue payable to Government was Rs. 9-3-0. Thereupon the trial Court decided that the rent payable to the plaintiff zamindar was Rs. 9-3-0 plus half of Rs. 9-3-0=Rs. 13-12-6. The zamindar was content with that decree; it was the Secretary of State who appealed and on his appeal the land revenue payable was decided to be Rs. 25-7-0. Can the patnidar be allowed to plead that it does not matter that the Secretary of State has got it decreed that the land revenue payable is Rs. 25-7-0, that inasmuch as the zemindar did not join in that appeal, he is liable to pay only Rs. 13-12-6 per annum to the zamindar? I am clearly of opinion that such a plea of the patnidar cannot be accepted.