KANTO MOHAN MULLICK Vs. JADAB CHANDRA KHARA

JUDGEMENT

(1.) The suit in which this appeal arises was brought by the plaintiff for recovery of 9annas 12 gds share of rent at the rate of Rs. 7-2-6 per annum. The plaintiff's allegation is that the rent in 76 annas share is Rs. 11-14-9. The plaintiff claimed rent for the years 1327-30 B.S., with cess and damages. Defendants 1 and 2, who contested the suit, dispute the jama payable by them in the 16 annas share as claimed by the plaintiff and stated that the jama in the 16 annas share was Rs. 8-4 as 161/2 gds. The Court of first instance, on a consideration of the evidence, both oral and documentary, held that the jama payable in plaintiff's share was as claimed by the plaintiff, and that the rent for the period in suit was admittedly in arrears, and decreed the suit with costs against the answering defendants and ex parte against the rest. An appeal was taken by the defendants to the lower appellate Court and the only point for determination before that Court was as to what is the jama payable by the defendants to the plaintiff. The learned Additional District Judge who heard the appeal considered the evidence in the case and held that the presumption in favour of the plaintiff arising out of the entry in the record-of-rights, which states the jama in the 16 annas share to be Rs. 11, odd as claimed by the plaintiff, has been rebutted by several documents, to wit, Exs. A, B, C, D and E, and he found that the plain-till is entitled to get the jama admitted by the defendants. He, accordingly, modified the judgment of the Munsif and decreed the suit at the rate of Rs. 8-4 as.-16 gds.-2 karas for the 16-annas, and Rs. 4-15 as - 13 gds.-3 karas in plaintiff's share and he allowed damages at 25 per cent, with proportionate costs. A second appeal has been taken to this Court by the plaintiff.

(2.) A preliminary objection has been taken to the hearing of the appeal by the learned advocate for the defendants-respondents. It is argued that, as the Court granted a decree to the plaintiff at the admitted rate, there was no decision on the question of the amount of jama within the meaning of Section 153, Ban. Ten. Act. Reliance has been placed in support of this contention on the decision in the case of Nekejaie V/s. Nanda Dulal Bamheja [1897] 1 C.W.N. 711. That case on its facts is distinguishable from the present case. There the Court held that the plaintiffs evidence was not reliable and that the defendant should consequently get a decree at the admitted rate. There was no decision on the evidence as to what the rate was. The case, as will appear from the report, proceeded on the defendant's admission. In the present case, the lower appellate Court had to displace the finding of the Court of first instance that the jama was not what the plaintiff alleged but was a different jama. In arriving at the conclusion that the jama was different from what the plaintiff alleged, the lower appellate Court considered the evidence, both oral and documentary, and came to the conclusion that the jama was what the defendants allege. In other words, the jama corresponded to the figure admitted by the defendants. It is not a case where the Court merely preceded on the admission of the defendant. The Court had to decide that the conclusion of the Court of first instance that the jama was as the plaintiff claimed was not the right conclusion. Consequently, it cannot be said in the present case that there was no decision on the amount of rent. In this view, I do not think there is any substance in the preliminary objection which must, accordingly, be overruled.

(3.) On the merits it has been argued by the learned advocate for the appellant that the lower appellate Court has committed an error of law in deciding the appeal on inadmissible evidence. It is said that Exs. A, C and D are decrees which were obtained by plaintiffs co-sharers against the defendants, and as the plaintiff, who represents the estate of the late Babu Manik Lal Seal was not a party to the said suit, the decrees were not inter partes and, consequently, are not admissible in evidence. Reliance has been placed in support of this contention on two decisions of this Court in the cases of Abdul Ali V/s. Raj Chandra Das [1906] 10 C.W.N. 1084, and Prem Chand Mandal V/s. Official Trustee of Bengal 27, C.W.N. p. 56, of the notes portion. The learned advocate for the respondent has relied on a decision of this Court in the case of Byomkesh Chakravarti V/s. Jagadiswar Roy [1917] 22 C.W.N. 304. The first two decisions support the appellant's case. The last decision, which takes the contrary view, was an ex-parte decision in an appeal in which the respondents were not represented. I think that, having regard to the decision of the Full Bench in the case of Tepu Khan V/s. Rajani Mohan Das [1898] 25 Cal. 522, and the recent decision of the Judicial Committee in the case of Naresh Narayan Roy V/s. Secy. of State A.I.R. 1923 P.C. 1, it must be held that these decrees are not admissible in evidence. As will appear from the case in 25 Gal., the reason for holding that such decrees were not admissible in evidence depended on one circumstance, namely, that the subject-matter of the two suits were not identical. In the present suit the parties are concerned with the share of rent which the plaintiff is entitled to get. It has been argued by the learned advocate for the appellant that there is no evidence to show that there was no contract creating the jama. That is a very important, circumstance. It does not follow that because one cosharer was suing for the particular amount as representing his share of the rent necessarily other cosharers would be getting the same amount if the shares were identical or a proportionate amount unless there was one contract by which the tenancy was created. The following observations of the Judicial Committee of the Privy Council in the case to which I have just referred are pertinent to the present question: This was a recovery by a cosharer as against the Secretary of State of her right in the lands for which the plaintiff is suing in the present suit. It is not in itself conclusive because the plaintiff was not a party to that suit. Objection, indeed, was made in that suit by the Secretary of State that the Rani could not sue without making other cosharers parties; and the answer made by the Court was that it was unnecessary as the judgment would only decide her right, and would not be binding either in favour of her or against other cosharers. It was rejected by the High Court even as evidence; and this rejection might have been right, if it stood alone. But it was followed by a deed of partition dated 13 December 1909, between the Rani, an officer of the Court of Wards acting for the present plaintiff, then an infant, and a representative of the Secretary of State, whereby the tract marked yellow was divided between the three parties according to their several shares or supposed shares.