The Goripalayan Durga vs P. Kesavaswamy Iyer (deceased) and Others

Viswanatha Sastri, J.—These four second appeals arise out of four suits, two of which were instituted by two ryots for the grant of patta u/s

55, Madras Estates Land Act for Fasli 1353 and two by the landholder against the same two ryots for arrears of rent due for fasli 1351 to fasli

1353 u/s 77 of that Act. The ryots were the appellants in all the four appeals preferred to the District Judge of Madura from whose decision the

landholder has preferred these four second appeals. The main question which arose for determination in all these four suits and appeals was

whether the landholder was entitled to levy a charge for water drawn by the ryots from the tank of the landholder for cultivating dry lands

comprised in their holdings with wet crops. It has been found by the learned District Judge that the solum of the tank vested in the landholder; that

the water stored in the tank became his and that for water drawn from the tank by them, the ryots were liable to pay water rate to the landholder.

On this finding the land-holder would be entitled to claim the water rate as part of the ""rent"" within the meaning of Section 3 (2) (ii), Madras

Estates Land Act. The learned District Judge, however, disallowed the landholder''s claim for water rate on the ground that it was barred by res

judicata by reason of the prior adjudication in two suits for rent for fasli 1344 between the same parties. The former judgment is marked as Ex. P-

The learned Judge made it clear at the same time that the bar of res judicata was confined only to the holdings covered by patta Nos. 7 and 13

with which alone the former suits were concerned. The contention of Mr. Ahmed Meeran, the learned advocate for the appellant, is that the

decision of the lower appellate Court on the question of res judicata is erroneous.

The facts connected with the previous litigation and the nature and effect of the prior adjudication have now to be stated. The land-holder

brought S. S. No. 806 of 1936 and 808 of 1936 in the Court of the Deputy Collector, Melur division, against the two ryots with whom we are

now concerned, claiming arrears of rent due on the holdings for Faslis 1342 to 1344 both inclusive. The tharam assessment or the dry rate payable

in respect of the holdings was paid by the ryots but they disputed their liability to pay the extra charge claimed by the landholder for water drawn

from his tank by the ryots for cultivating wet crops on their dry lands. During the pendency of these two suits, the two applications (M. P. nOS. 74

and 75 of 1936) were filed by the landholder before the same Collector u/s 30 (2), Madras Estates Land Act for enhancement of rent due on the

lands in pattas Nos. 7 and 13 on the ground that he had effected an improvement to these lands by allowing water from a tank which he had

maintained in a good condition, to be taken to these dry lands for the cultivation of wet crops and thereby caused the production of these lands to

be increased. M. P. Nos. 74 and 75 of 1936 related to Faslis 1342 and 1843 and were evidently filed to meet the objection of the ryots that the

landholder was, in effect, claiming an enhancement of rent in the two suits filed by him for recovery of a water rate, which he had not been

collecting before, and that the landholder should have followed the procedure prescribed by Section 30, Madras Estates Land Act. Whatever be

the reasons which led to the filing of M. P. Nos. 74 and 75 of 1936, they were dismissed by the Collector on 17-11-1936 on the ground that the

improvements on the basis of which the enhancement was claimed, had not been registered in conformity with Section 32 (1) (a) of the Act. The

order of the Collector is marked Ex. P-3.

On 1-12-1936 the Collector dismissed the suits for arrears of rent filed u/s 77 of the Estates Land Act (S. S. Nos. 806 and 808 of 1936) by a

judgment marked as Ex. P-4 (which omitting unnecessary portions) ran as follows :

These suits are therefore concerned only with the claim for the charge for water supplied to these dry lands . . . The decision on these suits clearly

depends directly on the disposal of the petitions (M. P. Nos. 74 and 75 of 1936). The enhancement of rent claimed in these petitions having been

refused, I cannot see how the same enhancement can be claimed in the suits. The plaintiff''s vakil withdraws the plaint in these suits with respect to

Faslis 1342 and 1343 in view of the decision given in M. P. Nos. 74 and 75 of 1936. Yet he affirms that the very same charge for water which he

claims for Fasli 1344 and which was refused in M. P. Nos. 74 and 75 of 1946 is not an ''enhancement of rent'' but is ''rent.'' I cannot see the

difference in the two cases--If the charge for water is admitted to be an enhancement of rent during the Faslis 1342-1343, the same charge made

under the same circumstances, must necessarily be also an enhancement of rent for Fasli 1344 and it cannot be claimed in these suits, in view of the

orders on M. P. Nos. 74 and 75 of 1936. Therefore, there is no necessity to go into the issues framed in the suits. The suits are dismissed with

costs.

I confess my inability to understand or appreciate the reasoning of the Deputy Collector which resulted in the dismissal of the suits for rent without

even a consideration of the issues raised in the case.

In the suits which have given rise to the present appeals, the plea of the landholder is that he is entitled to the water rate claimed by him as part

of the ""rent"" lawfully payable by the ryots and this is not a case of ""enhancement of rent"" within the meaning of Sections 30 to 32, Madras Estates

Land Act. It may be stated at the outset that the landholder''s claim is supported by the decision of this Court in The Madura Kallalagar

Devasthanam Vs. N. Subbiah Ambalam, . But the contention of the respondent, accepted by the learned District Judge, is that the claim is barred

by res judicata, by reason of the prior decision in S. S. Nos. 606 and 808 of 1936. I am unable to agree. The issues framed in the prior suits have

not been exhibited in the present case, but the main contest between the parties was, whether or not, the tenants were liable to pay the water rate

claimed by the landholder. The Collector declined to go into this question for the reason that, in his view, the landholder''s claim constituted an

enhancement of rent by reason of an improvement which had not been registered u/s 32 (1) (a) of Act I [1] of 1908. He, therefore, dismissed the

suits in limine without taking any evidence at all. This view of the Collector was erroneous in law. There was no need for a landholder, claiming in

addition to the tharam assessment a water rate, on the ground that the water from his tank had been drawn by the ryot for cultivating dry lands with

wet crops to get an order for enhancement of rent from the Collector u/s 32 of Act I [1] of 1908. But it is argued that the decision dismissing the

landholder''s previous suit nevertheless constitutes res judicata. The decision on a preliminary point on which a suit fails may be res judicata in

regard to that point itself in a subsequent suit whose subject-matter is the same. But as observed by Ramesam J.:

There can be no res judicata laying down a wrong rule of law between parties for future guidance also"" Narayana v. Subramanian, I. L. R. (1937)

Mad. 364 : A. I. R. 1987 Mad. 254 .

With reference to suits for grant of patta and recovery of rent under the Estates Land Act, if the terms and conditions of the tenancy generally

are decided for a particular year in a litigation between the landlord and tenant, the decision would bind the parties in future years also, unless fresh

circumstances intervene or there is an alteration in the law governing the rights of parties. The case would, however, be different if the former

decision was based on facts and circumstances, special or peculiar to the year, with respect to which the prior decision was rendered--See

Venkatanarasimha v. Venkataratnam, 32 M. L. J. 63 : A. I. R. 1918 Mad. 1309, Maharajah of Jeypore v. Ramamurthy, 57 Mad. 73 : A. I. R.

1933 Mad. 925; Narayana v. Subramania, I. L. R. (1937) Mad 364 : A. I. R. 1937 Mad. 254 . Strong reliance has been placed by Mr. T. L.

Venkatarama Aiyar, the learned advocate for the respondent, on the decision of the Full Bench in Bayyan Naidu v. Suryanarayana, 37 Mad. 70 :

AIR 1914 Mad. 399 for the proposition that when the Collector dismissed the former suit for rent filed by the landholder, he must he deemed to

have held by implication that the tenant was not chargeable with water rate in respect of his user of the water of the landlord''s tank. It is quite true,

that a decision would be res judicata even if it is not specific and express, provided it is necessarily implied in the decree. For instance, a decree

which necessarily involves a finding on an issue in the affirmative or the negative, even though no specific finding was recorded on it, would be res

judicata in a subsequent suit. This rule, however, can have no application, where, as here, the Court in the former suit has expressly left undecided

the issues that arose for decision in the later suit. As observed by the Judicial Committee

It would be a contradiction in terms to say that the Court had finally decided matters which it expressly left untouched and undecided.

See Parsotam Gir v. Narbada Gir, 21 ALL. 605 : 26 I. A. 175 .

The Collector dismissed the previous suits for rent in limine on the sole ground that the landholder not having complied with the statutory

requirements entitling him to an enhancement of rent, could not sue for the water rate which he had not hitherto collected. He declined to go into

the question whether the tenant would be liable for the water rate as ""rent"". I consider that the view of the learned District Judge that the decision of

the Collector in the previous suits operated as res judicata is incorrect.

I, therefore, reverse the decrees of the lower appellate Court and remand the appeal to the same Court for the passing of appropriate decrees in

the four suits after determining the amount of water rate payable by the ryots. The court-fee paid by the appellants in these four second appeals will

he refunded. There will be only one set of costs in S. A. Nos. 760 and 908 of 1946 and another set of costs in S. A. Nos. 761 and 909 of 1946

payable by the respondent to the appellant. (Leave refused.)