Debi Prasad vs Jaldhar Mahton and Others

Mullick, Ag. C.J.

A suit for rent for the years 1315 to 1317 F. was brought by the appellant against the respondents or their predecessors in the year 1910 in the Court of the Munsif of Barh. The plaintiff alleged that the defendants were his raiyats and were liable to pay chauraha rent which is rent paid in rice.

The Munsif found that the defendants were the plaintiff''s raiyats but that they were not liable for the rent inasmuch as the plaintiff had omitted to show them as his raiyats in Part II of a road cess return which he had filed in the course of a previous revaluation. He accordingly dismissed the suit.

The case was finally taken on appeal to the High Court, and in 1917 Mr. Justice Atkinson affirmed the Munsif''s finding and held that Section 20(b) of the Road Cess Act was a bar to the plaintiff''s claim.

The rents for the years 1318 to 1321 F. have become barred by limitation and the present suit is brought for the years 1322 to 1325 F.

The defence taken by the tenants is that the judgment in the previous case raises a bar u/s 11 of the Civil P.C. The Munsif, and the District Judge in appeal, both decided against the defendants'' contention and decreed the plaintiff''s suit. In second appeal Mr. Justice Das has found that Mr. Justice Atkinson''s decision, even if it was erroneous, was res judicata and that the present suit cannot succeed.

Since the judgment of Mr. Justice Atkinson in the previous suit it has been held by a Division Bench of this Court that it is immaterial whether a landlord in his cess revaluation return enters a, raiyat''s land in Part I or Part II and that so long as the land is contained in the return the landlord is entitled to recover his rent. Assuming, therefore, that Mr. Justice Atkinson''s decision was wrong the question is whether Section 11 of the Civil P.C. makes that decision res judicata for the purposes of the present suit. The question depends on whether the point now in issue was directly and substantially in issue in the previous suit. It does not appear from anything that has been said in the judgment of the Courts below that the matter was not raised in the previous suit or that it was only incidentally raised: nor has the learned vakil for the appellant to-day shown us anything from the pleadings in the previous suit which would lead us to hold that the issue was not identical in the two cases or that it was not directly and substantially raised. He rests his argument before us almost entirely upon the fact that the view of the Cess Act taken by Mr. Justice Atkinson has been pronounced to be wrong by a later decision of this Court and he contends that an erroneous decision on a point of law can never be res judicata.

This point has been considered in Ramlal Malikand Vs. Deodhari Rai, and unless we are prepared to make a reference to a Pull Bench we must follow, that judgment. In my opinion that reasoning contained therein is correct and the present suit is barred by res judicata. It is now settled that even if the cause of action for a suit is a recurring one every matter decided in the suit may be res judicata which was substantially and directly in issue. The result is that the appeal will be dismissed with costs.

The judgment will also govern Letters Patent Appeal No. 21 of 1924.

Kulwant Sahay, J.

I agree.