PIRTHI SINGH Vs. RAMSARAN MAHTO

JUDGEMENT

(1.) The plaintiff-appellant brought a batch of rent suits alleging himself to be a two-annas proprietor in the tauzi entered as such in the Collectorate Register D and entitled to realise two annas of the recorded rents from the respective tenants of the holdings in suit. He impleaded the recorded co-sharer landlords as pro forma defendants framing the suits in accordance with Section 148-A, Bengal Tenancy Act. The tenant defendants in all the suits except one and the pro forma defendants in all the suits objected that the entire rent was payable by the tenants to the pro forma defendants and nothing was payable to the plaintiff.

(2.) The Munsif rejected this contention, holding that it was concluded against the defendants by the principle of res judicata in consequence of the judgments and decrees in a similar batch of rent suits instituted in the year 1926-27 between the same parties. He held that in consequence of the principle of res judicata the defendants were precluded on the face of these decisions from raising in the present litigation the contention that the plaintiff was not entitled to the two annas share of rent for which he sued. The Munsif also held on the merits that the case setup by the defendants was not true. The allegation was that the proprietors of the village had long ago effected an arrangement by way of private partition under which the entire rent of some tenants was payable to the plaintiff; the entire rent of other tenants was payable to the pro forma defendants and that as a part of this arrangement the entire rent of the seven holdings in suit fell to be paid to the pro forma defendants.

(3.) On appeal to the District Judge that Court reversed the findings of the Munsif on both points. The District Judge thought that the alleged "division of the rents of tenants between the proprietors was correct and it was satisfactorily proved." This, he said, was the effect of a judgment on appeal of his predecessor, Mr. A.C. Davies, who, in dealing with a batch of rent suits instituted by the present plaintiff against certain other tenants in the same village, had to consider a similar defence to that raised in the present suits. The learned District Judge was of opinion that if any question of res judicata could arise at all this decision must operate to conclude the contention of the plaintiff. The District Judge unfortunately does not appear to have directed his mind to the precise questions which were for determination in those appeals and in these. In the present litigation the existence of an arrangement by which some tenants paid rent exclusively to the pro forma defendants and others to the plaintiffs was admitted; but it was said there remained a third class of tenants whose rents had not fallen to be collected exclusively by either party but remained payable to the several proprietors according to their shares; and the question was, whether the holdings in suit were of this third class. The question before Mr. Davies was not whether the present tenant-respondents were liable to pay rent to the present plaintiff-appellant in respect of the holdings now in suit but whether some other tenants were liable to pay rent to him in respect of some other holdings. Therefore the pronouncement of Mr. Davies was quite irrelevant to the question now under consideration and the District Judge's criticism on the judgment of the learned Munsif for having omitted to deal with that decision of Mr. Davies was uncalled for. The learned District Judge has used that judgment of Mr. Davies as an important piece of evidence in favour of the defendants which he was not entitled to do. It is not, however, necessary to go into the question whether his findings of fact are vitiated by this because his decision cannot be supported for another reason. He was in error in holding that the question between the plaintiff and the tenant-defendants was open to him for decision as a question of fact in face of the adjudication on the same question which was arrived at in the 1927 litigation. Of the batch of suits in that year one, namely, that against Ramsaran, the tenant of khata No. 328 the defendant in suit No. 1647 of the present year, was decided on contest, and the question whether the plaintiff was entitled to two annas share of the rent was directly put in issue in the trial Court and was the subject matter of an appeal to the District Judge. The issue was decided in favour of the plaintiff on contest and it is hardly necessary to say anything further regarding this second appeal No. 170 in which the plaintiff is obviously entitled to succeed, on the literal reading of Section 11, Civil P.C. the issue in question having been directly and substantially decided on contest. In the other suits of the 1927 litigation the decisions were ex parte, the plaintiff in each case getting a decree for the two annas share of rent claimed by him.