Balaram Mondul vs Kartick Chandra Roy Chaudhuri

This is a suit for arrears of rent from 1299 to 1302. The Plaintiff says that the Defendant is the tenant of the land in dispute; that the rent is Rs. 23-8 annas per annum, and that the rent is in arrears.

The Defendant says that he is not the tenant, and he is not in occupation of the land in dispute; that the rent payable is not Rs. 23-8, but Rs. 13-8, and that he owes the Plaintiff nothing.

The lower Appellate Court in deciding the question whether the relation of landlord and tenant exists between the parties, mainly relies upon a decree which, it appears, was obtained by the Plaintiff''s ijardar, and he has, therefore, held that the relation of landlord and tenant did exist, and he has found the rent to be Rs. 23-8, and has given the Plaintiff a decree for the arrears claimed.

The learned pleader, who appears for the Defendant-Appellant, in this case, urges that this decree is not evidence against his client for three reasons, first, that the Plaintiff does not claim under the ijardars who obtained the decree; sccond, that this decree was satisfied not by the Defendant, but by one Lal Mohun Majumdar, and third, that in the suit in which the decree in question was passed, the rate of rent was not in issue and was not decided.

We think that these contentions must prevail, and, under these circumstances the decree cannot be regarded as in evidence against the Defendant. The Plaintiff do not now claim under the ijardar, and, therefore, the decree would not operate as res judicata under sec. 13 of the Code of Civil Procedure.

In the second place the decree was ex parte and was satisfied not by the Defendant but by Lal Mohun Majumdar, who appears to be no relation whatever of the Defendant. He is a person who, the Defendant says, is in occupation of the land, and the Defendant repudiates all connection with Lal Mohun Majumdar or with the land in dispute.

In the third place the rate of rent was never raised and decided in the previous suit. The case of Hurry Behari Bhagat v. Pargun Ahir ILR 19 Cal. 656, 659 (1890) followed in the case of Bakshi v. Nizamuddi ILR 20 Cal. 505 (1892) rules that when the question as to the rate of rent is not decided in a case, the decree in that case is not evidence upon that point.

For these reasons we do hot think we can affirm the judgment of the lower Appellate Court, which, in passing, we may say, is by no means a satisfactory one. We set aside the decree of the lower Appellate Court and remand the case to that Court for a fresh decision excluding the decree we have referred to from consideration. Costs will abide the result.