Decided on September 23,1970

Amarendra Nath Mukhapadhya Appellant
Smt. Mata Maharani Kanchan Prava Mahadevi Respondents


R.S. Bindra, J. - (1.) The facts relevant to this second appeal are that the plaintiff Shrimati Mata Maharani Kanchan Parava Mahadevi. the owner of Kayemi Taluk no. 169 in mouja Badharghat, settled 63 drones of land out of that Taluk with the defendant Amarendra Nath Mukhapadhya on Dar -taluki basis against an annual rental of Rs. 551/11/ -inclusive of cess. In the suit for recovery of arrears of rent filed by the plaintiff she alleged that the defendant had surrendered 33 drones out of a total of 63 and so the proportionate rent payable by him for the balance of 30 drones was Rs. 254/3/9 per annum. It was pleaded further that the defendant had not paid the rent for the period 1369 T. E. to 1371 T. E. aggregating to Rs. 766/13/6 despite repeated demands and so it was prayed that a decree for that sum be awarded against him.
(2.) The defendant resisted the suit. He admitted that he had taken 63 drones of land of Dar -taluki basis from the plaintiff but denied that he had ever surrendered 33 drones out of them. He averred that the question of surrender of 33 drones was res judicata in view of a pervious judgment between the parties. The defendant alleged further that it was legally not open to the plaintiff to split up the holding and so the present suit for recovery of rent respecting a part of the holding was not maintainable.
(3.) The trial Court held that the plea of res judicata adopted by the defendant was established by the inter partes judgment of which Ext. D -2 is the copy, but nevertheless the plaintiff was entitled to get a simple money decree for the amount in suit instead of rent decree claimed by her. Therefore, the plaintiff was awarded a money decree for Rs. 766/13/6 with costs.;

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