SIR RAJAH BOMMADEVARA VENKATA NARASIMHA NAIDU BAHADUR ZEMINDAR OF PANGIDIGUDEM (DIED) Vs. RANI VENKATAPPAYA

JUDGEMENT

(1.) In this case, a batch of appeals and a connected batch of second appeals have been argued together. The appeals are from decrees of the Subordinate judge of Bezwada ordering the defendant Zemindar to refund to his tenants excess rents for Fasli 1316 and the following Faslis which the Zemindar has recovered from them by suits on the authority of the decision of this Court in Venkata Nara-simha Naidu v. Kasaraneni China Bapayya (1908) I.L.R. 33 Mad. 12 between the same parties for Fasli 1315, When these suits were decreed, the decree of this Court was under appeal to the Privy Council which reversed it in Ravi Veeraraghavulu v. Venkata Narasimha Naidu Bahadur (1914) I.L.R. 37 M. 443 : 27 M.L.J. 451 (P.C). The Subordinate Judge has decreed the suits on the authority of Shama Pershad Roy Chowdhry v. Hurro Pershad Roy Chowdury (1865) 10 M.I.A. 203 as interpreted by the majority of the Full Bench in Jogesh Chunder Dutt v. Kalichurn Dutt (1877) I.L.R. 3 C. 30 F.B. In Shama Prasad Roy Chowdhry v. Hurro Prasad Chowdhry (1865) 10 M.I.A. 203. the defendant had brought two earlier suits against the plaintiff to recover his share of a debt which the plaintiff was entitled to recover from third parties. The first suit was for his share of the principal with interest thereon to the year 1821. The second suit was for his share in the subsequent interest. The Sudder Adalat decreed the first suit, and the second suit was decreed on the authority of the decision in the first suit and the money recovered while the decree of the first suit was under appeal to the Privy Council which reversed the decree of the Sudder Adalat and remanded that suit. In these circumstances the Judicial Committee held that the plaintiff was entitled to recover the money which had been recovered from him in execution of the decree in the second suit. The Judgment in the second suit they observed must be held to be subsisting and valid until it was reversed or superseded by some ulterior proceedings, and they held that in the circumstances. The case the decrees in the second suit as well as the decree in the first suit were superseded by their judgment in the appeal in the first suit. They observed that the order in Council clearly intended that all the rights and liabilities of the parties should be adjusted on the remand in the first suit, and that it would be in contravention of the order to permit the decree obtained while the appeal was pending to interfere with this purpose. Moreover they observed that the decrees in the second suit re led on precisely the same cause of suit as the decree which was reversed by the Privy Council and this though the interest sought to be recovered in the two suits was in respect of different periods. Consequently they considered that the decrees in the second suit must be held to be mere subordinate and dependent decrees and not to remain in force when the decree on which they were dependent had been reversed. The majority of the Full Bench in Jogesh Ghunder Dull v. Kalichurn Dutt (1877) I.L.R. 3 Cal. 30. (F.B.) held that where the rate of rent had been fixed by decree for one year and rent for subsequent years had been recovered by the landlord from the tenant on the authority of that decision while it was under appeal to a higher court which reversed it, the tenant was entitled to sue to recover the excess rent paid by him in the subsequent suits which were decided on the authority of the decision in the first case. The principle of this case would seem to be that where the extent of a recurring liability such as the liability to pay rent, has been determined in one suit, and other suits between the same parties as to subsequent periods have been decided on the authority of that decision while it was itself under appeal to a higher court, the party who ultimately succeeds in the appeal from the first decision is entitled to regard the intermediate decrees as superseded and to enforce his rights as regards the intermediate periods with reference to the decision in the first case. It may be that as held in the dissenting judgment of Garth, C.J., the opinion of the majority is not fully covered by the authority of Shama Purshad Roy Chowdhury v. Hurro Purshad Chowdhury (1865) 10 M.I.A. 203 but if in that case the decree in the second suit could be regarded as dependent on the result of the pending appeal as to the decree in the earlier suit, I do not see why the same view should not be taken with regard to the facts of Jogesh Chandra Dutt v. Kalichurn Dutt (1877) I.L.R. 3 Cal. 30 (F.B) and of the present case. The decision of the majority in Jogesh Chunder Butt v. Kalichurn Dutt (1877) I.L.R. 3 Cal. 30 (F.B) has been followed in this Court in Panchanada Velan v. Vaidyanatha Sastrial (1905) I.L.R. 29 Mad. 333 and cited without disapproval in Kishan Sahai v. Bakhtawar Singh (1898) I.L.R. 20 A. 237 and I am not prepared to differ from it, more especially as it appears not unsuited to the conditions of litigation in India, where rent suits such as this are of constant occurrence and unfortunately may well take eight years, as here, or even longer from their inception in the Revenue Court to the final decision by the Privy Council and the landlord cannot be debarred from enforcing payment of his rent as it accrues due in the meantime, If this principle be accepted the next question is whether it is applicable to the present case where the decree which went on appeal to the High Court and to the Privy Council was the decree of a Revenue Court in a suit under Section 9 of the Rent Recovery Act, 1865, settling the terms of the patta for Fasli 1315 including the rent which when so settled formed the statutory contract between the parties for that Fasli under Section 72 of the Act, but were not binding as res judicata on the Civil Courts in suits to recover rent for other Faslis, as the Revenue Court had no jurisdiction in rent suits, as held in S.A. No. 408 of 1911 and S.A. No. 2574 of 1913.

(2.) None the less the decision of the High Court on appeal from the Revenue Court in the landlord s favour, which being a decision in second appeal must be treated as a decision of law was binding as authority while it was unreversed in the Civil Courts in the rent suits which subsequently came before them. Consequently in the rent suits which came before them while it was under appeal to the Privy Council, it was treated as settling the question and the suits were decreed in the landlord s favour. In these circumstances if the decision in Jogesh Chunder Dutt v. Kalichurn Dutt (1877) I.L.R. 3 C. 30 (F.B) is to be accepted, I see no sufficient reason for refusing to extend it to the present case. I do not think the fact that the Civil Courts decided the subsequent rent suits on the; authority of the High Court decision between the parties which was then under appeal, and not as res judicata, is a sufficient reason for refusing to apply this rule if it is to be recognised at all. We have been referred to Kishen Sahai v. Bhaktawar Singh (l898) I.L.R. 20 All. 237. In that case the landlord had sued in a Revenue Court to fix The rate of rent payable by the tenant, and obtained a decree. He then sued in a Revenue Court for the enhanced rate so fixed and obtained a decree, but subsequently the decree of the Revenue court fixing the rate of rent, was set aside by the Board of Revenue under the provisions of the local statute. The tenants then sued to recover the rent which they had paid contending that the decree for rent had been superseded by the decree of the Board of Revenue setting aside the decree fixing the rate of rent. The Board of Revenue in that case was not a Civil Court and its decrees were not binding as authority on the subordinate Civil Courts, and that circumstance appears to me sufficient to distinguish that case from the present.

(3.) The question is one of considerable doubt and difficulty but on the whole I have come to the opinion that the tenants on reversal of the decree of the High Court by the Privy Council became entitled to recover the rent which they have overpaid in the intermediate suits by reason of this decision. I think however the Subordinate Judge was wrong in assuming that the rate of rent fixed in the Revenue Court for Fasli 1315 has been decided to be the proper rent for succeeding Faslis. The decision of the Revenue Court only related to the contents of the pattah for Fasli 1315, and all that the Privy Council decided was that the High Court had no sufficient grounds for disturbing this finding of fact. Now that the decree of the High Court has gone, it will in my opinion be necessary for the court to find afresh what is the proper rate of rent with a view to ascertaining to what extent if any, the plain-tiffs are entitled to a refund. I would therefore reverse the decrees and remand the suits for disposal according to law. Costs will abide.