FAREY HOSSEIN MIR Vs. NAGENDRA KISHORE ROY CHOUDHURY

JUDGEMENT

(1.) In this suit the plaintiff is the landlord of certain lands in a village in two plots of which the defendants are the tenants. In respect of the plot in suit the plaintiff brings a suit for rent at Rs. 45-1-9 per annum including cesses on the basis of a decree obtained against all the defendants under Section 105, Ben. Ten. Act. The defendants contend that they are not bound by that decree under Section 105, because two of the defendants at the time were minors and were not duly represented in that proceeding. The lower appellate Court has held that at the time of the Section 105 proceedings the two defendants who were alleged to be minors were majors, and gave a decree for the plaintiff at the rate which he claimed against all the defendants. It was contended in the lower Courts and also on this appeal that the question whether at the time of the Section 105 proceedings the two defendants were majors or minors was determined by the previous suit between the same parties in respect of the other plot which they held under the plaintiff.

(2.) It appears that after the decree in the Section 105 proceedings a suit was brought for rent settled in those proceedings in respect of the other plot by the plaintiff against the same defendants, and it is contended that inasmuch as in that suit the parties were the same and the capacity in which they were sued was the same, the question whether the 105 proceedings upon the minor defendants by reason of the fact that they were minors and not duly represented in those proceedings was a matter substantially in issue, which in fact was heard and determined in that suit. I think it was, and in my opinion that question becomes res judicata as against the plaintiff. In those circumstances it was not open to the Court to hold that those defendants were majors at the time of the Section 105 proceedings, and, therefore, were not bound by those proceedings. The effect as against them is that the amount of rent must be at the old rate of Rs. 22-5-0. It is further urged that as against the major defendants the suit should be treated as a suit for money due for use and occupation, and that as against them a decree should be passed at the rate of Rs. 45-1-9. In my opinion that would not be a correct decree because it would result in the different cosharer-tenants holding at varying rates of rent the same plots.

(3.) For these reasons the must be allowed, the decree of the lower appellate Court set aside, and the decree of the Munsif varied in the sense that there will be a decree against all the defendants for the years 1328 and 1331 B.S. at the rate of Rs. 22-5-0 per year with cesses therein at 6 pies per rupee and damages at 25 per cent. The plaintiffs are entitled to their costs in all Courts.