Dhani Singh and Others vs Sri Chandra Choor Deo and Others

Kulwant Sahay, J.—This is an appeal by the defendants against the decree of the Subordinate Judge of Monghyr reversing the decree of the Munsif of Beguserai and decreeing the plaintiff''s suit with costs.

Four suits were heard together and disposed of by the Munsif by one judgment. The suits were for recovery of arrears of rent for certain holdings alleged to have been held by the defendants in these suits. Out of those four suits, suits Nos. 1452 and 1453 of 1919 were against the same defendants, except that in suit No. 1452 one Dwarka Singh was added as defendant, but he was not made a party in suit No. 1453, The plaintiff''s allegation was that the defendants in these two Suits Nos. 1453 and 1454 held two different holdings at different rentals. They alleged that the defendants, in suit No. 1452 had a holding of 16 bighas 17 kathas 3 dhurs at a rental of Rs. 38-1-9 with cesses and they claimed arrears of rent for the year 1918 and three-quarters, of the year 1919. In Suit No. 1453 the allegation was that the defendants had a holding of 19 bighas 8 kathas 19 dhurs at a, rental of Rs. 24-7-0 and the suit was for recovery of arrears of rent for the same period. The defence in these two suits was that the lands in both the suits formed one holding and that the entire holding consisted of 32 bighas and odd at a rental of Rs. 40-0-9 besides cesaas. The defendants further alleged that they were occupancy tenants of the lands in suit; and that their rent could not be enhanced in contravention of the provisions of question 29 of the Bengal Tenancy Act. The learned Munsif held that the holding in the possession of the defendants in the two suits was one holding at one rental of Rs. 40-0-9, as alleged by the defendants. He further held that the defendants were occupancy raiyats and that their rents could not be enhanced in contravention of Section 29 of the Bengal Tenancy Act. He accordingly ordered that the plaintiffs will get a decree at the admitted jama of Rs. 40-0-9 in one suit only, if the plaintiffs paid additional Court-fee, while the other suit will stand dismissed. As Suit No. 1452 was brought first, he decreed that suit and he dismissed Suit No. 1453. The order made by him runs thus: "Suit No. 1452 the decreed in full with costs and interest at 3 per cent, per annum at a jama of Bs 40-0 9, besides ceases, at one half-anna per rupee, if the plaintiffs pay the deficit Court-fee within three days hence, otherwise only for the amount claimed with costs and interest at 3 per cent. per annum and the Suit No. 1453 be dismissed with posts". It appears that the plaintiffs paid the deficit Court-fee in Suit No. 14,52 and a final decree was drawn up by the Munsif in Suit No, 1462 as directed by him and the decree in Suit No. 1453 was a decree of dismissal of the suit. Against the decree in Suit No. 1453 of 1919 the) plaintiffs, preferred an appeal before the Subordinate Judge. No appeal was preferred by them in Suit No. 1452 The learned Subordinate Judge has reversed the decree of the Munsif in Suit No. 1453 and has decreed the suit with coats as claimed by the plaintiffs. Against this decree of the learned Subordinate Judge, passed in Suit No. 1453 of 1919, the defendants prefer this second appeal to this Court and the first point taken by their learned Vakil is that no appeal having been filed against the decree in Suit No. 1452, that decree has become final and operates as res judicata to the hearing of the present appeal. In my opinion this contention is sound. The suits were heard together. The issues framed in the suit were common. They were disposed of by one judgment. The result was that it was found by the Munsif that the defendants bad only one holding and not two holdings and that the lands covered by the two suits formed one holding at one consolidated rent as alleged by the defendants. The decree in Suits No-1452, which decided the very point which was ought to be agitated before the learned Subordinate Judge in appeal in Suit No. 1453, having become final, it was not open to the plaintiffs to raise the same question again in appeal in Suit No. 1453. Moreover, the plaintiff having accepted the decision of the Munsif in Suit No. 1452 and paid the deficit Court-fee and agreed to take a decree for the entire amount as alleged by the defendant as representing the rental for the lands covered by both the suits, he was precluded from raising the question in appeal before the Subordinate Judge that he was entitled to additional rent for the land covered by Suit No. 1453, That the principle of res judicata applied to the hearing of the appeal before the learned Subordinate Judge is supported by authority. In the Full Bench case of Zahari v. Debia (1910) 33 All. 51 two persons filed two separate suits for pre-emption in respect of the same sale, each claiming a right of pre-emption preferential to that of the other. Bach plaintiff was made a party defendant to the suit brought by the other. A judgment was delivered in the suit of one of the plaintiffs and a copy thereof was placed on the record as the judgment in the suit of the other plaintiff; but separate decrees were prepared in each suit, one of the suits being decreed and the other dismissed. The plaintiff, whose suit had been dismissed, preferred an appeal from the decree in his own suit but not from the decree in the other suit which decree became final before the appeal was decided. It was held that the doctrine of res judicata applied and the appeal was barred. In the same Volume of the Allahbad Series of the Law Reports at page 151 [33 All.] there is a decision in the case of Dakhni Din v. Syed Ali Asghar (1910) 33 All. which follows the decision in the case of Zaharia v. Debia (1910) 33 All. 51. The same view was taken by the Calcutta High Court in the case of Midnapore Zemindary Co. Limited v. Nitya Kali Dasi 24 Ind.Cas. 243. A different view was taken by two learned Judges of the Calcutta High Court in the case of Mariamnissa Bibi v. Joynab Bibi (1906) 33 Cal. 1101; but Mr. Justice Rampini dissented from the view taken by the other two Judges and the view taken by Mr. Justice Rampini was adopted in the Full Bench case of Zaharia v. Debia (1910) 33 All. 51. Moreover, having regard to the fact that the plaintiff accepted the decree of the Munsif in Suit No. 1452 and agreed to take a decree for a consolidated rent for the lands covered by both the suits, it is no longer open to him to challenge the correctness of the decree in Suit No. 1453 and to obtain a decree for rent for a portion of the same holding twice over.

I am, therefore, clearly of opinion that the hearing of the appeal before the learned Subordinate Judge was barred by res judicata. In this view of the case it is not necessary to discuss the other points raised by the learned Vakil for the appellant. I would allow the appeal, set aside the decree of the learned Subordinate Judge and restore the decree of the Munsif. The appellant will be entitled to his costs in the lower appellate Court. There will be no order for costs in this Court as the respondents did not appear.