Ram Lochan Singh and Others vs Jatadhari Singh and Others

The plaintiffs in the year 1316 F.S. purchased the interest of one Rajnath Singh in 5-annas 9-pies share in Mouza Rajpore. Prior to this purchase by the plaintiffs, the defendants, with some of their relations, obtained a thicca of one anna 3 dams share comprised within the 5 annas 9 pies share purchased by the plaintiffs. The one anna 3 dams share which was leased to the defendants represented lands which were in the possession of the defendants and other members of their family together with 19 bighas which the defendants in this suit had purchased from one Chhatu Singh. The total area of the land which was in the possession of the defendants and their relations and which was termed their ancestral kasht property was 57 bighas. This area of land together with the 19 bighas which was the property of Chhatu Singh was leased to the defendants at an annual cash rent of Rs. 178 for the years 1304 to 1310 inclusive. It does not appear clearly if after the expiration of the lease in 1310 the defendants continued to pay to Rajnath Singh a cash rent or a bhauli rent. The plaintiffs, however, allege in paragraph 6 of their plaint that a bhauli rent was paid by the defendants to Rajnath Singh after the lease had expired, but this is denied by the defendants. Of the total area of 57 bighas of kasht land the defendants acquired 24 bighas and the residue 33 bighas remained with the defendants'' other relations. Subsequently the defendants purchased Chhatu Singh''s interest of 19 bighas; and there by the defendants in this suit became entitled to, and were in possession of, 44 bighas in round figures of the original lands comprised in the thicca of 1304. Thus the reserve rent of Rs. 178 ought to be apportioned between the defendants in this suit and the relations of the defendants who are still in possession of the 33 bighas odd of the original kasht lands.

The plaintiffs bring this suit to recover bhauli rent for the years 1317 to 1320. The plaintiffs brought a suit originally in the year 1909 claiming a bhauli rent against these defendants and the number of that suit was 253 of 1909. That suit was dismissed by the Munsif who tried it. On appeal it was also dismissed by the learned District Judge The case then went in second appeal before the High Court at Calcutta, and the High Court was pleased to allow the plaintiffs to withdraw the suit and gave them liberty to institute a fresh suit provided that they paid the costs of the defendants in that suit within two months of the date of the record reaching the lower Court. The plaintiffs paid the costs of the High Court and also the costs of the District Judge''s Court but omitted to pay the costs incurred in the Munsif''s Court. The Munsif, however, allowed a fortnight''s time to the plaintiffs to make a further deposit of the costs which were due for the Munsif''s Court. The plaintiffs made a deposit within the time allowed by the Munsif and the money deposited was withdrawn by the defendants in satisfaction of the costs due from the plaintiffs.

The learned Subordinate Judge, who tried the present suit, held that the proceedings of 1909 did not operate as res judicata in respect of the plaintiffs'' claim in this suit. The learned Judge on appeal, however, has taken a contrary view and has held that the order made by the Calcutta High Court did operate as a bar to the plaintiffs'' right to sue in this action and that it operates. But we think that the learned District Judge was wrong. Once a case is taken on appeal it cannot be said to have been finally determined until the Appellate Court has adjudicated upon the question in issue between the parties; and by reason of the High Court allowing this suit to be withdrawn by the plaintiffs, it cannot be said that its order possesses that necessary degree of finality so as to operate as res judicata relative to the rights of the parties to the antecedent litigation. In a case reported as Ghurphekni v. Purmeshar Dayal Dubey 5 C.L.J. 653 the law upon this question is clearly summarised in the following words: "When the decision of the lower Court is taken on appeal to a superior Tribunal and that Tribunal for any reason does not think fit to decide the matter, it is left an open question." Here their Lordships of the Calcutta High Court allowed the plaintiffs to withdraw the suit and by reason of this permission to withdraw, the very foundation or basis of the order of dismissal passed by the lower Court was cut away. Therefore, in no sense can the order made by the Calcutta High Court be deemed to operate as res judicata in any subsequent proceeding. We think that the learned Subordinate Judge was right in the determination of the question of law arrived at by him and that the learned District Judge was wrong.

The only question which remains for determination is whether the plaintiff is entitled to a bhauli rent or to a cash rent. The learned District Judge held that they were not entitled to bhauli rent having regard to the determination of the point of law which arose. The learned Subordinate Judge held that they were entitled to cash rent because under the lease of 1304 the original bhauli rent was converted from Vhauli into nakdi. The learned Subordinate Judge, however, dismissed the plaintiffs'' claim on the ground that they had wrongly claimed bhauli rent when they should have claimed cash rent. In the Record of Rights the defendants are recorded as being tenants of the 44 bighas in their possession at a rent of Rs. 104 per annum. This rent bears the same proportion to the total rental specified in the thika of 1304, viz., Rs. 178, as the area in respect of which it is payable bears to the total area covered by the lease of 1304. There is nothing on the record to show that the presumption of accuracy attaching to the entry in the Record of Rights has been rebutted. Accordingly we think that the plaintiffs are entitled to receive a cash rent from the defendants at the rate of Rs. 104 per annum in respect of the total area of land in their occupation, namely, 44 bighas. Accordingly, by consent of the parties, we modify the decree of the learned District Judge and declare that the plaintiffs are entitled to have a decree from the defendants for the years in suit for cash rent at Rs. 104 per annum. Owing to the inefficient manner in which this appeal has been argued we will give no costs in this appeal which is, therefore, decreed in a modified form without costs.