Patna High Court
Mahraja Sir Rameshwar Singh Bahadur vs Younus Momin on 7 June, 1921
Equivalent citations: 65IND. CAS.474, AIR 1923 PATNA 101
JUDGMENT Coutts, J.
1. This Appeal (No. 77 of 1920) arises out of a suit for rent for the years 1319 to 1322. The rent is claimed at the rate of Rs. 10-11-6 which was the rate fixed on compromise in a proceeding under Section 105.
2. It appears that previous to the present suit the plaintiff in the year 19(sic)0 instituted a suit for rent at this rate. The Suit was contested by the defendant who relied on the Record of Rights in which the rent of the holding was shown as Rs. 9 11-7/12. The suit was decreed at the rate admitted by the defendant. Subsequently, in the year 1915, there was another rent suit by the plaintiff, and the plaintiff again claimed at the rate fixed on compromise in the proceeding under Section 105. This suit was not contested by the defendant and the plaintiff was given an ex parts decree at the rate claimed by him. He has now brought the suit out of which this appeal has arisen. The suit was decreed in the Court of first instance at the rate admitted by the defendant, namely, Rs. 9-ll-7/12, and on appeal to the Distrust Judge this decision was upheld. There was a second appeal to this Court which was heard by a Single Judge and the decisions of both the lower Courts have been upheld. It is against this decision that the present appeal has been filed.
3. The basis of the decision appealed against is, that the rate of rent decreed in the rent suit of 1910 is ret judicata and that, therefore, the plaintiff is not entitled to a decree at the rate of rent fixed in the compromise.
4. The only point which is urged before us in this appeal is, that the decree of the Court which decided the rent suit of 1910, in SO far as it decided the rate of rent, was without jurisdiction and Section 109 of the Bengal Tenancy Act is relied on. That section runs 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 under Sections 105 to 108 both inclusive.
5. There is no doubt that the Court which decided the rent-suit in 1910 had jurisdiction to pass a decree for the rent for the years which were in suit in that particular case but, in view of the provisions of Section 109 of the Bengal Tenancy Act, it obviously had no jurisdiction to pass a decree fixing the rate of rent as this had already been decided in the proceeding under Section 105, and, in so far as it did so, there is, in my opinion, no doubt that it was acting without jurisdiction. This being so the decision, so far as this particular point is concerned, cannot be res judicata. In this view of the case, the contention urged on behalf of the appellant must, in my opinion, prevail. I would accordingly set aside the decision appealed against and decree the suit at the rate fixed in the compromise in the Section 105 proceeding. In other words I would decree this appeal with costs throughout.
Ross, J.
6. I agree.