RAI MANI DASI Vs. UPENDRA NANDAN DAS MAHAPATRA

JUDGEMENT

(1.) These are a number of appeals which arise out of a number of rent suits which were tried together. The main contention of the defendants with which we are now concerned is that there is a custom of suspension of rent when the crops have been destroyed by flood or drought. The trial Court gave effect to the contention and dealt with the cases on this footing dismissing the claim for rents for the year 1329 Amli. The landlord appealed. The lower appellate Court found with regard to the holdings within the touji No. 274 that the defendants had failed to prove the existence of any such custom. This disposed of appeals Nos. 173, 174,178, 182, 187, 188, 190,191, 194,195 and 197 of the lower appellate Court. With regard to the appeals with regard to tenancies within touji No. 275 he held that the question was res judicata because in certain proceedings under Section 105, Ben. Ten. Act, it had been held that no such custom existed. He therefore decided these appeals in favour of the zamindar.

(2.) With regard to appeal No. 186, which he dealt with separately, he found no evidence of any such custom. He was clearly influenced in coming to this finding by the fact that it had been found in the Section 105 proceedings that no such custom existed in the neighbouring estate. With regard to the appeals relating to the holdings falling within touji No. 274 the lower appellate Court has come to a finding of fact on the evidence which we cannot interfere within second appeal. With regard to the holdings falling within touji No. 274 all these holdings except appeal No. 186 (of the lower Court) formed the subject-matter of a proceedings under Section 105, Ben. Ten. Act. In these proceedings the zamindar prayed for an assessment of fair and equitable rent. The tenants in those proceedings raised the same question of the existence of the custom. The Assistant Settlement Officer decided the question against the tenants. But the proceedings under Section 105 were for some reason or other dismissed.

(3.) In such circumstances can the decision of the revenue officer make the matter res judicata between these parties? No doubt the revenue officer had the power to decide the question and he decided it against the tenants. But against this decision the tenant could not appeal, for the case was decided in the tenant's favour and he could not appeal against the decision of an issue which had been decided against him when the final order on the whole proceedings was in his favour. It is the decision of the revenue officer in the proceedings which has the effect of a civil Court decree and his decision in these proceedings was that the application be dismissed. Neither so far as the decision of the proceedings was concerned was it necessary to decide the question regarding the custom. Obviously not; for although the decision of the issue was against the tenants the final decision was in his favour.