Basudeo Pande and Others vs Nirmal Kumar and Others

James, J.—In 1878 the defendants to this litigation obtained the mokarrari lease of village of which the area was estimated to be 675 bighas. The rent reserved ''by the lease was fixed at Rs. 1,518-12-0, but there was a proviso that if the estimated area should be found incorrect the tenure-holders would pay rent at the rate of Rs. 2-4-0 a bigha for the actual area. The village was not measured until the survey and settlement operations, and the area was then ascertained to be 545 bighas, measured by a rod of 5i cubits. In 1911 the proprietors of a one-third share of the zamindari sued the tenure-holders for arrears of rent at the rate of Rs. 1,518-12-0.

The tenure-holders contested the suit, alleging that they were in occupation of only four hundred bighas, and that according to the stipulations in the lease they were liable to pay rent only at the annual rate of nine hundred rupees. During the hearing of the suit it was agreed between the parties that the area should be taken to be 545 bighas odd; and the suit was decreed on these terms. The plaintiffs from time to time since 1911, have been obtaining decrees for arrears of rent at this rate. In 1912the proprietors of the remaining two-thirds share of the zamindari sued the tenure-holders for arrears of rent, impleading the proprietor "of the one-third share u/s 148-A, Ben. Ten. Act.

The plaintiffs'' claim in that suit was that the annual rent payable for the tenure was Rs. 1,228; but the tenure-holders contested the suit claiming, as they had claimed in 1911, that the area was four hundred bighas and that the rent which was payable was accordingly only nine hundred rupees, The parties went to trial on the issues of what was the standard of measurement understood to apply when the original lease was granted, and what was the rent payable.

The Subordinate Judge found that the bigha was based on a standard of measurement larger than that adopted by the survey authorities, that is to say, something larger than 5j cubits, and that the rent payable was Es. 900. His decision was affirmed by the District Judge on appeal, and a second appeal was dismissed by the High Court.

The suit out of which the present appeal arises was instituted by the proprietors of the one-third share for recovery of rent at the rate agreed upon in the suit of 1911. The defendants again claimed that rent was payable only at the rate of nine hundred rupees. The Subordinate Judge of Arrah decided the point in favour of the defendants; but on appeal his decision was reversed by the District Judge who decreed the claim of the plaintiffs.

Mr. Lachmi Narayan Sinha on behalf of the appellants argues that the decision in the suit of 1919 ought to be treated as res judicata between the parties to the present litigation, because the plaintiffs of the present suit were joined in that suit as pro forma defendants u/s 148-A, Ben. Ten. Act. But, as the learned District Judge has pointed out, the Question of what was the amount of rent payable was not a matter in issue between the present plaintiffs and the defendants of the suit. The present plaintiffs were merely joined in order that the cosharers who instituted the suit might obtain a decree for the full amount of rent if it should be found that rent had not been paid to the cosharers of the one-third share, and in order that the decree might operate as a rent decree

It is impossible to hold that the question of the amount of rent payable which was in issue between the plaintiffs landlords and the tenure-holders was directly and substantially in issue between the pro forma defendants who are the present plaintiffs and the contesting defendants of that suit. Between these plaintiffs and the tenure-holders the question of what was the amount of rent payable for the tenure was determined in the suit of 1911 when the matter was directly and sub stantially in issue between the parties and was definitely decided.

In my opinion the decision of the learned District Judge is correct and must be affirmed. This appeal is dismissed with costs.

Das, J.

I agree.