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Appeal from Appellate Decree No. 177 of 1950 decided on 23rd March 1953.

S. 100‑Question of construction of entry in record‑of‑rights which referred to another document between parties, viz., a registered patta, one of law.

Both the parties to the suit relied on the khatian, as the only document of title in support of their respective right and title accruing from the entry as to rent payable by one party to the other.

Held, that it was a question of interpretation of the docu ment of title as the entry in the khatian referred to the stipula tion between the parties in the registered pasta mentioned in the khatian itself. The question was what should be the meaning of such a stipulation. It was not an inference from the entry in the record‑of‑right; but really it was a construction of a document of title which could be agitated in Second Appeal.

S. 11‑Rate of rent not directly and substantially in issue in previous suit‑Not res‑judicata.

Unless the question as to the amount of rent payable on the‑construction of the lease .was raised and decided in a previous rent suit the decision cannot operate as res‑judicata in a subsequent rent suit.

Maheshwari Devi v. Gourhari Maity A I R 1926 Cal. 767, Modhusudan Shaha Mundul and others v. Brae I L R 16 Cal. 300, and Tarangini Mitra v. Abhilash alias Abinash Mondal and others 50 C W N 473 (476) rel.

Gurudas Sen v. Gobinda Chandra Sinha and others 24 C W N 85 ref.

A. S. M. Mofakher for Appellant.

Birendra Kumar Choudhury for Respondents.

‑This appeal is by the tenant defendant in a rent suit. It is directed against the judgment and decree of the Subordinate Judge, Chittagong, passed in Rent Appeal No. 191 of 1947, dated the 19th of January, 1949, modifying those of the Munsif at Sadar, Chittagong, passed in Rent Suit No. 164‑of 1947, dated the 30th day of August, 1947.

Plaintiffs respondents instituted a suit for arrears of rent for the years 1351 B. S. to 1353 B. S. in respect of their 4 annas share in the total jama of 16 aris of paddy per year claiming the price of 4 aris of paddy per year in their share at market rate together with cess and damage thereof.

The suit was contested by the defendant No. 1. His defence was that the plaintiffs were not entitled to the market price of the paddy but at the fixed rate and took the plea of payment to the plaintiffs by postal money orders which were refused by the plaintiffs. In support of his case, he relied on the entry in the khatian which run as follows:

" 16 aris of paddy including cess or Rs. 16 the price thereof."

When the plaintiffs were confronted with the entry in the khatian, they pleaded that the entry in the record‑of‑right was wrong and that the question as to the rate of rent was barred by res‑judicata on account of the decision in the previous rent suit and relied on Exhs. 1 and 1 (a), copies of the decree in the previous rent suit.

The trial Court decreed the suit in part holding that the plaintiffs were entitled to get the fixed price of Re. 1 per ari of paddy and the plea of fixed price was not barred by res‑judicata though in the previous rent suit decree was passed on the basis of Market price claimed in the suit as there was no specific decision of the question in that suit. As regards the plea of payment the trial Court relied on Exhs. A to A (2) the money order receipts, and held that the plaintiffs were not entitled to get damages and costs,

On appeal the learned Subordinate Judge modified the decree of the trial Court, holding that 16 aris of paddy or its price Rs. 16 in the khatian was hardly sufficient to show that in default a lump sum of money was payable and the word "its price" suggested that the stipulated amount of paddy was the real jama, the sum of Rs. 16 being stated to give an idea of its cash value at the time when the khatian was prepared ; that mere mention of an equivalent cash value was again out sufficient to show that in case of default, a fixed cash sum was payable ; and that there must be something more to show that in case of default a fixed cash sum was payable. Therefore he was of opinion that there was no sufficient materials to show that Rs. 16 was the fixed price and not the market price of 16 aris of paddy. He further held that such a plea was again barred by the rule of const ructive res judicata under explanation IV of section 11 of the Code of Civil Procedure.

Mr. Mofakher, the learned Advocate for the appellant, contends that the learned Subordinate Judge is absolutely wrong in his interpretation of the entry in the record‑of‑right based on the patta, dated the 30th July, 1923, and that he is absolutely wrong in holding, that the question of the rate of rent disputed in the present suit is barred by constructive res‑judicata on account of the decision in the previous rent suit.

As regards his first point, it cannot be said that the stipulation to pay Rs. 16 as price of 16 aris of paddy was the market price and‑ the plaintiffs are entitled to get market price of 16 aris of paddy in case of default to deliver 16 aris of paddy. They secured themselves by fixing the price against the fall in prices of the paddy in future If a land lord lets out a land fixing a rent in kind in default to pay certain sum as price thereof, it is inconceivable that at the same time he will take the risk of fall in prices by allowing a variation in money for all time to come. So also the case with the tenant who undertake to pay paddy rent in default certain sum it is not likely for him to take the risk of rise in price of paddy. In the absence of anything in the lease itself it cannot be held that either the landlord took the risk of rise in price of paddy for all time to come in spite of certain sum specifically mentioned as price thereof.

The entry in the record‑of‑right shows that the rent was fixed for all time to come in kind or in cash. The word in the record‑of‑right "Thatmauloo" but no "That Bazar Bhau Muloo" definitely leads to the fixity of rent between the parties for all time to come whether it is in kind or in cash. In support of the view taken by me, reference may be made to the case of Gurudas Sen v. Gobinda Chandra Sinha and others (24 C W N 85) where Chatterjee and Duval JJ. held : "That on the tenant making default in paying the landlord's share of the paddy the latter was not entitled to recover the market value of the paddy at the time but only the fixed amount of Rs. 36." In that case the kabuliyat provided that the tenant would pay four rupees as rent and 91 aris of bhag, paddy to be delivered at the house of the lessor in the month of Poush every year according to a certain measure, and the cash rent within the course of the year. The kabuliyat then provides : " If I fraudulently do not pay the aforesaid rent and share of paddy you shall be competent to realise the said rent and Rs. 36 as price of paddy together with interest and damages by bringing rent suit under the Act in force or under any other Act which may come in future to which I shall raise no objection." The stipulation as to the payment of rent in the pasta recorded in the record‑of‑right in the present case is stronger than in the case reported in 24 C W N 85.

Mr. Birendra Nath Choudhury, the learned Advocate for the landlord respondents, contends that the inference drawn from the entry in the record‑of‑right by the Courts below is an inference of facts and cannot be challenged in Second Appeal. I am unable to accept the contention of Mr. Choudhury as correct. Both the parties relied on the khatian, as the only document of title in the case in support of their respective right and title. It is a question of inter pretation of the document of title as the entry in the khatian refers to the stipulation between the parties in the registered pasta mentioned in the khatian itself. The question is what should be the meaning of such a stipulation. It is not an inference from the entry in the record‑of‑right; but really it is a construction of a document of title which can be agitated in Second Appeal. In my opinion, therefore, in view of the stipulation, in the pasta mentioned in the record‑of‑right, plaintiffs are entitled to get either at the rate of 16 aris of paddy per year or Rs. 16 the price thereof per year as rent of the entire holding and in their share they are entitled to get Rs. 4 per year.

As regards the point of res‑judicata, the learned Advocate for the appellants contends that in the previous rent suit there was no question as to the rate of rent nor question of fixed price or market price of paddy was raised and decided; and, therefore, it cannot operate as res‑judicata in the present suit. On the other hand the learned Advocate for the res pondents frankly admits that the plaintiffs in the previous suit though claimed price of the paddy at the market rate the question whether he was entitled to fixed price or market price was not raised and decided in the previous rent suit; but his contention is that the point might have been raised by the defendants in the previous suit and as they have not railed that point, they are not entitled to raise that question now in the present suit. The learned Advocate for the res pondents relied on a number of cases including, the case of Maheshwari Devi v. Gourhari Maity (A I R 1926 Cal. 767) The head‑note of that case runs as follows:

" A rent decree even though it is ex‑parte is as good and as binding between the parties as a contested decree. When an ex‑parse decree for' rent is conclusive upon the question as to the existence of the relationship of landlord and tenants between the parties at the time of the decree there is no reason why the same principle should not apply to the decision in an ex‑parte decree as to what was the rate of rent at which the decree was made. The value of an ex‑parse rent decree as regards rate of rent would depend upon the circumstances of the particular case."

Pearson and Chakravarti JJ. at page 771 of the report observed as follows:

" In a contested decree, express issues are raised on the pleadings of the parties or otherwise, but in an ex‑parse decree the Court must necessarily be taken to have decided questions which were necessary for supporting the decree made in the case and to that extent the decree must be taken to have decided such questions. When a previous ex‑parte decree for rent of a previous year, or years, is put in evidence, authorities show that it is admis sible in evidence. The questions, therefore, in each case must arise as to what effect should be given to such a decree, and that question must be determined by the circumstances of each case. The Full Court pointed out that there may be a case. in which a decree for rent may be explained to have been passed without determining what the rent payable for each year was. The ex‑parte decree filed in the present case, are, therefore, admissible in evidence. I may also point out that the decree for rent for a particularly specified period cannot and does not contain a declaration by implication what the future rent would be. It is always open to the defendant, as was pointed out by Sir Richard Garth, in the Full Bench decision, to show that there has been subsequent variation of the rent. In the absence of evidence of such variation, the Court of facts is entitled to find that the amount of rent payable per year was the same at which the ex‑parse decree was passed."

It is correct that the decree for rent for a particularly specified period cannot and does not contain a declara tion by implication what the future rent would be and that whether the ex‑parte rent decree will operate as res‑judicata in subsequent rent suit must be decided by the circumstances of each case. In the present case, no such specific issue was raised in the previous suit, nor was it decided. In the Full Bench case of Modhusudan Shaha Mundul and others v. Brae (I L R 16 Cal. 300), it is held that a mere statement of an alleged rate of rent in a plaint in a rent suit in which an ex‑parse decree has been obtained, is not a statement as to which it must be held that an issue within the meaning of section' 13 of the Code of Civil Procedure was raised between the parties so that the defendant is concluded upon it by such decree. It further held that neither a recital in the decree of the rate of rent alleged by the plaintiff, nor a declaration in it as to the rate of rent which the Court considers to have been proved, would operate in such a case so as to make that matter a res‑judicata, assuming that no such declaration were asked for in the plaint as part of the substantive relief claimed, the defendant having a proper opportunity of meeting the case. What we find in present case is that in the Rent Suit No. 1097 of 1944 the defendants contested the suit on the ground of plea of payment of rent as also on the ground that the price of paddy claimed in 1349 B. S. to 1350 B. S. was excessive. Both the points were decided against the defendants and the suit was decreed. In appeal the defendants took up the point in default of delivering the promised paddy rent the fixed sum was due but the District Judge, Mr. G. B. Synge did not allow the defendants to raise the point and dismissed the appeal holding : "The appellate Court does not exist in order to give 'a second chance to defendants of producing evidence that will defeat the plaintiff's claim ; the appellate Court, save in exceptional circumstances is confined to the evidence on record. This is not an exceptional case." Therefore it appears that whether the plaintiffs are entitled to get rent at the rate of Rs. 16 as fixed price of 16 aris of paddy or the market price of that paddy was not before the Court in the previous suit. No such plea was raised either by the plaintiffs for declaration nor does it appear that the Court applied its mind to that question at all. The circumstances of this case brings it within the scope of the Full Bench decision mentioned above. So unless the question as to the amount so payable on the construction of the lease was raised and decided in a pre vious rent suit the decision cannot operate as res‑judicata in a subsequent rent suit. In the case of Tarangini Mitra v. Abhilash alias Abinash Mondal and others (50 C W N 473 (476)), Chakravarti J. observed that:

"The question which was put to issue was a question relating to the effect of the lease and 'surely that was a question which would be equally applicable to all years and could not have any special meaning or any special limita tions so far as any particular year was concerned. It was the basic question of the tenant's true liability under the lease, in no way dependent on any accidental circumstances of the claim made in that suit. Again, the question was raised so directly and the decision is so definite that it seems to me to be beyond argument that it must operate as res‑judicata."

If we apply our mind to the principles laid down by Chak ravartti J. we cannot say that in the present case any question relating to the effect of the lease, or the basic question of a tenant's liability under the lease was raised in the previous suit and it was decided directly or by implications. In this view of the matter I cannot accept the contention of Mr. Choudhury that the decision in the previous rent suit would operate as constructive res‑judicata in the present suit.

The result, therefore, is that this appeal is allowed with costs, the judgment and decree of the lower appellate Court are set aside and those of the trial Court restored.

A.H. Appeal Allowed.

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