BRAJA NATH BHAKAT Vs. BIMALENDU RAY

JUDGEMENT

(1.) The plaintiff-respondent brought a suit for recovery of arrears of rent, at the annual rate of Rs. 103-6-0, for the years 1344-1347 B.S. in respect of certain dags recorded in khatians 2, 3, 4, 5, 26, 27 and 34, the allegation being that this consolidated joma had come into existence, with the consent of the tenant, in the year 1336. There was a previous rent suit for the years 1338 and 1339, in respect of these khatians and dags and it was decreed ex parte, the amount having, according to plaintiff, been recovered in execution. The defence was that there was one joma for the dags of khatian 27 and another for those of khatian 34; that the suit lands in khatians 26 and khatians 2-5 (being khas khatians of the original landlords) were in the occupation of the appellant who admitted the relationship of landlord and tenant in respect of all the suit lands, but made a case that the land held by him in these latter khatians (2-5 and 26) remained unassessed to rent; the story of consolidation was thus denied.

(2.) On these facts, the parties went to trial on two main issues in the Court of the Munsif of Naogaon who decided both of them against the plaintiff-respondent. The Munsif held (a) that the previous rent decree did not operate as res judicata with regard to the annual rate of rent, based on the story of consolidation and (b) that in any case the plaintiff had failed to prove the story of consolidation by the testimony of the solitary witness examined. The finding amounted to this, that this witness was not in a position to depose to certain material facts for reasons which will be considered later and that therefore the collection papers put in were not relevant to corroborate the story of consolidation and payment of rent thereafter. Against the dismissal of the suit the landlord carried an appeal which was heard and allowed by the Subordinate Judge of Rajshahi who held (a) that the decision in the previous rent suit operated as res judicata and (b) that there was evidence, oral and documentary, in proof of the story of consolidation and payment at the consolidated rate.

(3.) The same two points arise for consideration in this second appeal by the tenant defendant who is a Marwari. Decision (a) res judicata. The plaint of the previous rent suit (No. 1983 of 1933) is Ex. 6 and the decree is Ex. 7. Exhibit 6 shows that, that suit was brought for recovery of arrears of rent at one annual joma of Rs. 103-6-0, in respect of two plots in khatian 26, seven in khatian 27, two in khatian 34 and part of one dag numbered 306 and comprising 2.89 of land recorded in khas khatians. The total area of the plots in all the khatians is shown as 37.88. There was a claim for annual cess and for compensation. The figures for each item of claim are separately given and the total stood at Rs. 266-8-5 g. It was filed on 18 April 1933 (evidently the tamadi day) and decreed ex parte on 15 September following. It being a decree drawn up under the Tenancy Act, the lands of the plaint are not reproduced in the decree, but there can be no question that the full amount of rent, cess, compensation, and future interest was granted in respect of the suit lands described in the plaint of this rent suit. The present plaint as originally drafted, in printed form and filed on 15-4-1941 was in respect of the same two plots in khatian 26, the same seven plots in khatian 27 and the same two plots in khatian 34. The fractional dag comprising 2.89 acres in the khas khatian (s) was added by an amending petition made part of the plaint on 6-12-1941. Those khas khatians are shown as numbered 2, 3, 4 and 5. The total area before amendment stood at 34-99 and after amendment at 37-88 as in the previous suit. Apart from a wasil of Rs. 3 for 1344, the total claim for each year is identical with that of the two years of the earlier suit, viz., rent: Rs. 103-6-0; cess: Rs. 3-3-5g. and compensation of Ks. 52-7-0 at 12? per cent.