BIKAN MAHURI Vs. BIBI WALIAN

JUDGEMENT

(1.) This is an appeal arising out of a number of suits which in the Court below gave rise to four appeals, but in this case we are only concerned with one which arises out of suit No. 169 of 1936 in which according to the statement of the learned Judge in the Court below there was. a claim for tangiana at the rate of Rs. 150 and also ground-rent for the land on which the defendant's gola house stands at the rate of Rs. 8-12- 0 iper year for the years 1341 to 1343 Fasli. I have purposely substantially quoted the words of the Judge in the Court below, because upon the question of what this Rs. 150 was depends my decision in the case. I must confess that my mind has changed very considerably during the course of the argument, but in the result the question to be decided falls within a very small compass; and, once that question is decided, it seems to me that the other difficulties in the case disappear. The substantial question on the merits which arose, apart from the tech. nical objection to the claim which has been raised by Mr. P.R. Das in this Court, was whether the defendant was liable to pay the sum of Rs. 150. I do not think there is any substantial cispute between the parties as to his liability to pay Rs. 8-12.0 which was the ground-rent. The question whether he should pay the Rs. 150 was made to depend in the Court below first upon custom and then upon contract. It would appear that the defendant and the plaintiff were the suocessors-in-title of persons who (if the contract existed) originally entered into that contract.

(2.) The learned Judge in the Court below has come to the conclusion that there was no contract to pay tangiana. I propose to quote his words to prevent any difficulty arising. The learned Judge says: In view of the evidence and circumstances of the case which I have discussed at length and which has been considered by the learned Munsif, I agree with him in holding that no contract to pay tangiana has been proved nor has any realization of the same from the defendants at the lump rates claimed or at any rate has been established. The point was accordingly decided against the appellants before the lower Appellate Court. The learned Judge then goes on to point out that there was practically no evi-dence of custom and comes to a conclusion against the plaintiff so far as his case depended on custom. It seems to me quite clear that the finding of the learned Judge in the Court below that there was no contract to pay would entitle the defendant to have the suit, so far as it concerned the sum of Rs. 150, dismissed as against the plaintiff. But the learned Judge proceeds to determine the case on the footing of a previous judgment and after having discussed the various considerations placed before the Judges at various stages of that case makes this observation: The defendants must be presumed to hold the gola lands on the same terms and conditions as their father against whom the decree was passed so far back as 1872 and there is no reason to think that they have not paid the rent ever sinoe.

(3.) He also points out that even if rent had not been paid, the fact would not relieve the defendants of the liability. It is difficult to understand the judgment having regard to the previous statement of the learned Judge that no contract was proved. It is only on the footing of contract that the liability of the defendant would arise, and the conclusion stated by the Judge to which I have referred as regards the previous judgment of 1872 is tantamount to a find-ing that contract was to be implied from the circumstances of the case. It seems therefore that the learned Judge has decided the liability of the defendant on the footing that he held over as laid down in the judgments in the previous case (Exs. 11 and 11.a) and decided that that liability was a continuing liability. It is contended by Mr. Khurshed Husnain on behalf of the plaintiff-respondent that the judgment is res judicata. It seems to me that that is an argument which cannot be accepted. What was decided in that case was a question of title the question of the title of the plain, tiff in the case of 1872 was decided, as it was contended (so it appears) that the plaintiff was not entitled to claim the sum. It is upon that fact that the question of title was decided in the case, which decision Mr. Khurshed Husnain contends operates as res judicata. A passage in Sir Dinshaw Mulla's book on Civil Procedure Code is relied upon by both parties. That passage is as follows: If the question of title is gone into in the previous suit as if the right of rent were sought to be established not for one particular year, but onoe for all, it will be said to have been direotly and substantially in issue. But if the question of title is gone into in the previous suit as if the right of rent were sought to be established not onoe for all but for one particular year, it will be said to have been in issue collaterally or incidentally.