Pirthi Singh vs Ramsaran Mahto and Others

Rowland, J.—The plaintiff-appellant brought a batch of rent suits alleging himself to be a two-annas proprietor in the tauzi entered as such in the Collectorate Register D and entitled to realise two annas of the recorded rents from the respective tenants of the holdings in suit. He impleaded the recorded co-sharer landlords as pro forma defendants framing the suits in accordance with Section 148-A, Bengal Tenancy Act. The tenant defendants in all the suits except one and the pro forma defendants in all the suits objected that the entire rent was payable by the tenants to the pro forma defendants and nothing was payable to the plaintiff.

The Munsif rejected this contention, holding that it was concluded against the defendants by the principle of res judicata in consequence of the judgments and decrees in a similar batch of rent suits instituted in the year 1926-27 between the same parties. He held that in consequence of the principle of res judicata the defendants were precluded on the face of these decisions from raising in the present litigation the contention that the plaintiff was not entitled to the two annas share of rent for which he sued. The Munsif also held on the merits that the case setup by the defendants was not true. The allegation was that the proprietors of the village had long ago effected an arrangement by way of private partition under which the entire rent of some tenants was payable to the plaintiff; the entire rent of other tenants was payable to the pro forma defendants and that as a part of this arrangement the entire rent of the seven holdings in suit fell to be paid to the pro forma defendants.

On appeal to the District Judge that Court reversed the findings of the Munsif on both points. The District Judge thought that the alleged "division of the rents of tenants between the proprietors was correct and it was satisfactorily proved." This, he said, was the effect of a judgment on appeal of his predecessor, Mr. A.C. Davies, who, in dealing with a batch of rent suits instituted by the present plaintiff against certain other tenants in the same village, had to consider a similar defence to that raised in the present suits. The learned District Judge was of opinion that if any question of res judicata could arise at all this decision must operate to conclude the contention of the plaintiff. The District Judge unfortunately does not appear to have directed his mind to the precise questions which were for determination in those appeals and in these. In the present litigation the existence of an arrangement by which some tenants paid rent exclusively to the pro forma defendants and others to the plaintiffs was admitted; but it was said there remained a third class of tenants whose rents had not fallen to be collected exclusively by either party but remained payable to the several proprietors according to their shares; and the question was, whether the holdings in suit were of this third class. The question before Mr. Davies was not whether the present tenant-respondents were liable to pay rent to the present plaintiff-appellant in respect of the holdings now in suit but whether some other tenants were liable to pay rent to him in respect of some other holdings. Therefore the pronouncement of Mr. Davies was quite irrelevant to the question now under consideration and the District Judge''s criticism on the judgment of the learned Munsif for having omitted to deal with that decision of Mr. Davies was uncalled for. The learned District Judge has used that judgment of Mr. Davies as an important piece of evidence in favour of the defendants which he was not entitled to do. It is not, however, necessary to go into the question whether his findings of fact are vitiated by this because his decision cannot be supported for another reason. He was in error in holding that the question between the plaintiff and the tenant-defendants was open to him for decision as a question of fact in face of the adjudication on the same question which was arrived at in the 1927 litigation. Of the batch of suits in that year one, namely, that against Ramsaran, the tenant of khata No. 328 the defendant in suit No. 1647 of the present year, was decided on contest, and the question whether the plaintiff was entitled to two annas share of the rent was directly put in issue in the trial Court and was the subject matter of an appeal to the District Judge. The issue was decided in favour of the plaintiff on contest and it is hardly necessary to say anything further regarding this second appeal No. 170 in which the plaintiff is obviously entitled to succeed, on the literal reading of Section 11, Civil P.C. the issue in question having been directly and substantially decided on contest. In the other suits of the 1927 litigation the decisions were ex parte, the plaintiff in each case getting a decree for the two annas share of rent claimed by him.

I am of opinion that the principle of Section 11 applies by reason of the explanation which extends it to cases in which a matter which ought to have been raised as an issue will be treated as if it had been raised and decided against the party who ought to have raised it. The question whether this principle applies to rent suits decided ex parte has been considered in a number of decisions of the Calcutta High Court, and it must be taken as settled that as between a landlord and his tenant the question of the relationship of landlord and tenant is a matter that necessarily arises in a rent suit and must be considered to have been decided in favour of the landlord whenever an ex parte decree is obtained by him against his tenant. There are no doubt cases in which it has been held that an ex parte rent decree does not conclude questions as to the rate of rent, but we have not been shown any case in which it has been doubted that as regards the relation of landlord and tenant a decision in an ex parte rent suit is to be treated as a matter finally determined between the parties. In Gnanado Gobinda Choudhury v. Nalini Bala Debi 1926 Cal 650, Mukharji, J. sums up the effect of the decisions in Krishna Behari Roy v. Brajeswari Chowdrani (1874) 1 Cal 144, Nubo Durga Dasi v. Fyzbux Chowdhury (1875) 1 Cal 202, Vishnu v. Ramling (1902) 26 Bom 25, Natesa v. Venkatarama (1907) 30 Mad 510 and Dwarka Das v. Akhay Singh (1908) 30 All 470:

The essence of the doctrine of res judicata is that where a material issue has been tried and determined between the same parties in a proper suit and in a proper Court as to the status of one of them in relation to the other or as to the right or title claimed by one of them against the other the same question cannot be agitated by them again in another suit.... In the case of suits for rent or other recurring liability, the causes of action for suits for successive periods are different. In the case of such suits, for the doctrine to apply, it will have to be shown that the question of right or liability not merely for the period in the previous suit, but that for all times or once for all was directly and substantially in issue and was tried and determined. If a direct issue on the point was raised and decided the decision would be res judicata in respect of any such suit for a subsequent period.

Now the relationship of landlord and tenant is the very foundation of a decree in a suit for rent and, therefore, when such a suit has been decreed the Courts must proceed on the footing that it was a matter necessary to be determined and in fact determined in the earlier rent suit. It cannot be relegated to the category of matters only indirectly, collaterally and incidentally decided. This being so, I am of opinion that the decision in the 1927 litigation operated as res judicata between the plaintiff and the tenant-defendants concluding their contention that the 16 annas rent was payable by them to the co-sharer proprietors and nothing to the plaintiff. That being so, the decision of the Munsif was correct. The appeal should be allowed and the decision of the Munsif restored with costs throughout.

James, J.

I agree.