Patna High Court
Maharaja Keshwa Pershad Singh Bahadur vs Progas Kuar And Ors. on 9 February, 1917
Equivalent citations: 39IND. CAS.576, AIR 1917 PATNA 615
JUDGMENT Atkinson, J.
1. This second appeal comes before me from the decision of the Subordinate Judge of Shahabad, affirming the decree granted by the Munsif in this suit in favour of the plaintiff. The plaintiff who is a landlord suss the defendants who are his tenants for rent for the years 1317 to the 8 annas kist of 1320 at the rate of Rs. 10-13-0 per annum. The entry in the Record of Rights shows the rent payable by the defendants in respect of this holding, which forms the subject-matter in suit, to be Rs. 6 per annum and accordingly the learned Munsif gave a decree in favour of the plaintiff for the years in suit at the rate of Rs. 6 per annum. The plaintiff appealed from that decision and the learned Subordinate Judge on appeal affirmed the decree granted by the Munsif. The decree made by the Munsif was obtained ex parte. The plaintiff relies on the fact that he had obtained some years previously an ex parte decree against the same defendants for rent due in respect of the same holding at the rate of Rs. 10-13-0. This decree was satisfied by the tenants depositing in Court the amount of the decree, plus costs.
2. It is contended, first of all, that the ex parte decree that the plaintiff had obtained in the year 1905 is res judicata as between the parties on the question of the rate of rent; and secondly, that even if it was not res judicata the decree afforded evidence on the record so strong as per se to rebut the presumption arising in favour of the entry in the Record of Rights. In my view neither contention is well founded. A decree for rent obtained for a specific year or years does not operate as res judicata in a suit for rent in respect of subsequent years. The result is different in a case where the suit for rent is in regard to land held under a contract, oral or written, for a term of years. In such a case the rate of rent does not vary during the term of the contract and a decree obtained in respect of one year of the contract operates as res judicata as to the rate of rent during the continuance of the contract. In 13 Calcutta Law Journal a case is reported at page 38 Hara Chandra Bairagi v. Bepin Behary Das, 13 C.L.J. 38 ; 2 Ind. Cas. 11 on Letters Patent Appeal, 6 Ind. Cas. 860.--Ed where the point has been fully dealt with by Mr. Justice Mookerjee in his judgment. That learned Judge says: "The question whether an issue as to the rate of rent generally is a direct or indirect issue in a suit for arrears of rent, must be determined with reference to the frame of such suit, and cannot be determined upon any general or a priori grounds; if the rent is claimed at a certain annual rate, on the simple ground of rent having been paid at that rate in the preceding year, it cannot be said that an issue as to the annual rate of rent generally is a direct issue in such a suit; on the other hand, if the rent is claimed at an annual rate alleged to have been stipulated for in a binding contract between the parties, either written or oral, and the Court proceeds to try the question, what is the yearly rent payable according to the contract set up, the general issue must be taken to be a direct one." To the like effect is the case reported as Nil Madhub Sarkar v. Brojo Nath Singha 21 C. 236 at p. 240 ; 10 Ind. Dec. (N.S.) 789. Therefore, in my opinion the previous ex parte decree does not operate in this case as res judicata.
3. The next question is as to the value to be attached to this decree. That is the decree of weight to be attached to this piece of evidence contrasted with the other evidence in the case. What I have to determine is as to the existence of evidence; and it is for the lower Courts to determine the question as to the weight of the evidence. Both the lower Courts have come to the conclusion that the evidential value to be attached to the first ex parte decree obtained by the plaintiff against the defendant does not rebut the presumption arising from the entry in the Record of Rights. Accordingly I hold that the decision of the lower Appellate Court affirming the decree of the learned Munsif was right in point of law. I, therefore, disallow this appeal. But as no one appears for the defendants, I make no order as to costs.