Province of Bengal vs Haidar Shaikh

Das, J.—These three appeals arise out of as many suits for assessment of rent and for compensation for use and occupation.

On April 7, 1945, the Plaintiff landlord who is the Appellant in all these appeals instituted the present suits. His case was that in the finally published record of rights the disputed lands were recorded in the possession of the Defendants as tenants under the Plaintiff but as liable to assessment of rent.

The defence to the suit inter alia was that the suit was barred by Section 109 of the Bengal Tenancy Act as also by res judicata.

The trial court repelled the defence and decreed the suit.

On appeal by the Defendants the decision was reversed on the ground that the present suit was barred by Section 109 of the Bengal Tenancy Act and the suits were dismissed.

The Plaintiff has appealed to this Court.

The learned Assistant Government Pleader who has appeared for the Appellant has contested the propriety of the decision of the lower appellate court and has submitted that Section 109 as amended in 1929 will apply to the facts of this case.

Mr. Apurbadhan Mukherji, learned advocate for the Defendants Respondents, has first submitted that the decision of the lower appellate court as regards the applicability of the unamended Section 109 is correct. He has also contended that the Plaintiff''s claim to assessment of rent is barred by the 12 years period of limitation under Article 131 of the First Schedule to the Indian Limitation Act.

In his final reply, the learned Assistant Government Pleader has contended that no question of limitation arose as the suit would be governed by Section 4 of the Murshidabad Act XV of 1891 and the period of limitation would be sixty years as provided therein.

The facts relevant for the purpose of deciding this appeal are as follows:

In the finally published record of rights the disputed land was recorded as "liable to assessment of rent".

The Plaintiff landlord instituted proceedings u/s 105 of the Bengal Tenancy Act. These were dismissed for default in 1918.

In 1921 the Plaintiff landlord filed three suits for assessment of rent and for damages for use and occupation.

The Defendants contested these suits on the ground that the suits were barred u/s 109 of the Bengal Tenancy Act and were not maintainable.

These suits were originally registered as rent suits hut to obviate the objection of the Defendants, they were converted into title suits.

Two of the issues raised in the suits were as follows:

(5) Are the suit lands liable to assessment of rent? If so, what would be the fair and equitable rent?

(6) Is the Plaintiff entitled to any damages for use and occupation? If so, how much?

The learned munsif who heard these suits held that Section 109 of the Bengal Tenancy Act was a bar and that "the suits are not "maintainable and consequently the lands are not liable to "assessment of rent and that the Plaintiff is not entitled to any "damages". On the above findings, the suits were dismissed. The judgment is dated March 23, 1922, and was marked as Ex. A.

The Plaintiff appealed to the court of the district judge. The learned district judge affirmed the findings of the trial court and dismissed the appeals. The appellate judgment is dated May 11, 1923 and was marked as Ex. A(1).

No further appeal was taken to this Court. The appellate judgment became final.

As already stated, one of the pleas raised in the present suits was that the present suits were barred by res judicata in view of the said decision of the district judge Ex. A(1) which affirmed the decision of the trial court. Ex. A which had held that "the "lands are not liable to assessment of rent", the ground for this conclusion being that the suits were barred u/s 109 of the Bengal Tenancy Act.

The learned munsif in the present case overruled the plea of res judicata on the ground that the previous decision proceeded on the old Section 109 of the Bengal Tenancy Act but as Section 109 has since been amended, the plea of res judicata is no longer available to the Defendants.

In 1918 when the previous suits were decided, Section 109 of the Bengal Tenancy Act read as follows:

Subject to the provisions of Section 109A, a civil court shall not entertain any application or suit concerning any matter which is or has already been the subject of an application made, suit instituted, or proceedings taken under Sections 105 to 108 (both inclusive).

Act IV of 1928 substituted the words "Section 115C" for "Section 109A" and added a proviso which runs as follows:

Provided that nothing contained in this section shall debar a civil court from entertaining a suit concerning any matter which-

(a) was the subject-matter of an application u/s 105, or Section 105A, or of a suit u/s 106, if such application or suit has been dismissed for default or withdrawn, or

(6) has not been finally adjudicated upon in any such proceeding or suit.

The amending Act came into force in February, 1929. The present suits were instituted in April, 1945.

The effect of the amending Act is that the Defendants cannot in the present suits plead with success the bar under the old Section 109 because of the dismissal for default of the application u/s 105 in 1918.

The question, however, is whether the effect of the amending Act has rendered nugatory the conclusive effect of the 1921 suits.

As I have already said the learned munsif answered the question in the affirmative.

The amending Act of 1928 did not in express terms, remove the finality of the decision in the 1921 suits. The amending Act, inter alia, removed the bar which existed in consequence of the dismissal for default of a previous application u/s 105, 105A, 108 and of a suit u/s 106.

It is true that the effect of the amendment was that the ground on which the 1921 suits were decided against the Plaintiff, has ceased to be a good ground for the dismissal of a suit, if it was instituted after the amendment.

But the finality of a previous decision rests on the adjudication of an issue joined between the parties and not on the validity or otherwise of the ground for the decision.

Section 11 of the CPC by its terms makes final the decision of the court on an issue raised and nor its ratio decidendi.

In the case of Tarini Charan Bhuttacharya v. Kedar Nath Haldar (1928) I. L. R. 56 Cal. 723, Rankin C.J. observed:

* * * what is made conclusive between the parties is the decision of the Court and that the reasoning of the Court is not necessarily the same thing as its decision. The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recon testing that which has been finally decided.

In the 1921 suits the court expressly held that the lands were not liable to assessment of rent.

It is undoubtedly true that the reasoning on which this decision is based is no longer correct by reason of a change in the law by statutory enactment. But on the principles stated above, the decision itself has not lost its finality. It may also be pointed out that the amending statute has not expressly taken away the binding effect of the previous decision.

The learned munsif referred to the Bench decision in Alimunnissa Chowdhurani v. Shama Charan Roy (1905) I.L.B. 32 Cal. 749, 755, as supporting the Plaintiff''s contention that the decision in 1921 suits is no longer binding between the parties by reason of the amendment of Section 109.

In the Bench decision, the facts were these:

In a previous decision in a suit for rent, the Plaintiff was held to be disentitled from recovering interest at the contractual rate of 24 per cent, per annum, on the ground that Section 67 of the Bengal Tenancy Act controlled Section 170 of the Act as laid down in Basania Kumar Roy Choudhury v. Promotha Nath Bhuttacharjee (1898) ILR 26 Cal. 130. The Court decreed interest at 12 per cent, per annum as provided by Section 67.

In a later suit for rent between the same parties, the Plaintiff claimed interest at 24 per cent. The Defendant resisted the suit on the ground that the previous decision was res judicata. On the other hand it was contended on behalf of the Plaintiff that the decision in Basanta Kumar Roy Chowdhury''s case (supra) has since been reversed by the decision of the Full Bench in Matangini Debi v. Mokrura Bibi (1901) ILR 29 Cal. 674 and, as such, the previous decision has lost its binding effect.

The Bench upheld the Plaintiff''s contention. Maclean C.J. thus stated the basis of the decision:

* * * The only question is whether Section 67 of the Bengal Tenancy Act is a bar to the present claim for interest. The law, as it now stands, says it is not, and I think we are bound to give effect to that law; when the previous case was decided the law was then regarded as different. To hold otherwise would be to hold that there is one law for the parties in the Full Bench case, and another law for the parties in the present case. That does not seem to me to be right. If the Defendant''s contention be sound, the court must, for all time, perpetuate an injustice, by saying the section is a bar, when the law says it is not a bar.

If the above view be correct, the result would be that a decision by a higher court on a point of law, would result in unsettling all previous adjudications, which had proceeded on a contrary "view. I may quote the following observations of Rankin C.J. Tarini''s in case already cited:

* * * if the binding character of a decision upon a concrete question as to the terms of a particular holding is to fluctuate with every alteration in the current of authority, the courts will become an instrument for the unsettlement of rights rather than for the ascertainment thereof.

The learned Chief Justice also pointed out:

But I am clearly of opinion that the reasoning which Maclean C.J. and Holmwood J. adopted in the case mentioned is erroneous.

In so far as Alimwnnissa''s case already cited laid down that the plea of res judicata cannot be invoked where the previous decision proceeded on a view of law which has subsequently been overruled, the case must be taken to have been overruled by the Full Bench in Tarini''s case cited already.

The question whether a change in the law by subsequent legislation deprives a previous decision inter partes of its finality, was conceded in Alimunnissa''s case. The point was not decided by the Full Bench in Tarini''s case. As already stated, the observations by Rankin C.J. quoted above rather support the contrary view.

The decision of Roxburgh J. in Jharuram, Das Monda v. Hajar Mohammad Sheikh Fakir [1944] AIR (Cal.) 13 is distinguishable.

In this case, the Plaintiff claimed rent at Rs. 150 in a rent suit of 1939. The Defendant pleaded that the Plaintiff was not entitled to a decree at a rent exceeding by 25 per cent, the rent paid by the Plaintiff to his own landlord, viz. Rs. 31. The defence plea was accepted. It was held that the amended Section 48 of the Bengal Tenancy Act was held to be inapplicable as the tenancy was in existence before the date of the amendment. The suit was accordingly decreed at Rs. 38-12-0. After this decision, Section 47A was added. This section made Section 48 applicable to all tenancies whether created prior or subsequent to the enactment of Section 48. Thereafter the Plaintiff brought a suit for rent claiming rent at Rs. 144. The Defendant raised a plea of res judicata by reason of the decision in 1930 suit.

Roxburgh J. overruled the plea on the ground that the bar by reason of the 1930 decision was removed by reason of a legislative change which made Section 48 as amended retrospective.

The decision may be distinguished on the ground that the subject-matter of the two suits was different, and that Section 47A expressly affected the rights of the parties as adjudicated upon in previous decision. The last ground is in accord with the following observations of Rankin C.J. in Tarini''s case:

The legislature, by statute, may alter the rights of parties and when it does so it makes such provision as it thinks proper to prevent injustice.

The observations so made by Rankin C.J. do not however apply in the present case, because Section 109 as amended by Act IV of 1928 did not make any such provision affecting previous decision.

My conclusion therefore is that the decision in the 1921 suits operates as res judicata on the question whether the disputed lands are liable to assessment of rent.

The Plaintiff is therefore not entitled to claim assessment of rent in respect of the suit lands.

In this view, it is not necessary to decide the other points which were canvassed before us.

The appeals accordingly fail and are dismissed with costs. There will be one hearing fee in all these appeals.

Das Gupta, J.

I agree.