Gokul Mandar vs Pudmanund Singh

Lord Davy, J. 1. This is an appeal against a decree of the High Court of Calcutta, dated the 30th. July 1897, reversing the decree of the Subordinate Judge of Monghyr, dated the 17th August 1895. The subject-matter of the litigation is a tract of land measuring 1,174 bighas, situate in the village of Patpar Madhopore, of which the respondents (plaintiffs of the first part) are proprietors. The other respondents (plaintiffs of the second part) are parsons in whose favour a tenure of some sort has recently been created by the proprietors. The real and only question on this appeal is whether the appellant Gokul Mandar became a "tenure-holder" only or a "ryot having a right of occupancy" in the land in question within the meaning of the Bengal Tenancy Act, 1885. 2. The facts of the case may be shortly stated. 3. In and prior to 1881 the Government claimed to be proprietors of the lands in question with other lands adjacent thereto as an accretion after diluvion to the Government khas mehal Binda diara; and on the 7th November 1881 the Government granted to the appellant Gokul Mandar 3,668 odd bighas, including the lands in question at a rent of five annas bigha, until April 1893. The kabulyat executed by the said appellant was on a printed form, in which it was described" as "Form of kabulyat for those cultivators, who have not been recognised, as having occupancy rights," but, on the other hand, the holding was described in a note as a "talook." On the 3rd September 1885 the Government, on the recommendation of the Commissioner of the Bhagalpore Division, released the 1,174 bighas to the predecessor in title of the first respondents as part of the Raj Baneli and Srinuggee estates, and (it is agreed) the appellant Gokul Mandar thereupon became tenant thereof to the Rajah on the terms mentioned in the kabulyat. In 1888 proceedings were commenced under Chapter X of the Bengal Tenancy Act, 1885, for a survey and record of rights in village Patpar Madhopore, and in the course of those proceedings a question arose as to the status of the appellant Gokul Mandar in respect of the 1,174 bighas. The Assistant Settlement Officer, directed the appellant''s name to be entered, as a tenure-holder, and his decision was affirmed on appeal by the District Judge of Bhagulpore, acting as the Special Judge under the Act, and again by the High Court. 4. The first respondents served the appellant Gokul Mandar with a notice to quit on the expiry of his term at the end of April 1893. After that date there were the usual disputes as to possession before the Magistrate, and ultimately the present suit was commenced by the respondents against the appellants, the second appellant being joint in property with Gokul Mandar. By their plaint they asked for judgment (1) that the decision passed by the Settlement Department had become final, (2) alternatively for a decision that the appellants had no occupancy , right in the land, and (3) for possession. 5. The Subordinate Judge held that the Settlement Officer''s award, although it had the effect of a Civil Court decree, could not be used as res judicata in an original suit cognisable by that Court alone, and he found on the evidence before him that the appellant Gokul Mandar was a ryot with a right of occupancy. The suit was therefore dismissed with costs.'' The learned Judges in the High Court disagreed with the Subordinate Judge, and held that the evidence showed that the defendant Gokul Mandar was a tenure-holder and not a ryot, and the defendant should therefore be ejected. They added: "It is not necessary for us to give any opinion on the other points raised." 6. Their Lordships agree with the decision of the High Court and with the reason given for it by the learned Judges. They-do not attach any importance to the mere form of the kabulyat or to the use in it either of the word "cultivator" or of the word "talook." It is only another instance of the usual mistake of" using a printed form for a purpose, to which it was not adapted. Nor does the receipt for rent given by the Rajah on the 30th. November 1893, in which the appellant Gokul Mandar is described as "ryot," carry the matter any further. Prior to that date, as pointed out by the Judges, the Rajah had served a notice to quit, treating the appellant as tenure-holder. It is a question of substance, not of form. By Section 5 (5) of the Bengal Tenancy Act, 1885, it is enacted that, where the area held by a tenant exceeds one hundred standard bighas, the tenant shall be presumed to be a tenure-holder, until the contrary is shown. In this case the grant to the tenant was of 3,688 odd bighas, and adopting the view of the evidence expressed by the High Court, their Lordships think the contrary has not been shown. 7. The appeal therefore fails on-the merits, and it is not necessary for their Lordships, to decide whether the decision of the Revenue Officer can be pleaded as res judicata on the issue as to Gokul Mandar''s status. They will only observe in reference to arguments addressed to them that under Section 13 of the Civil Procedure Code a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit, unless the Judge, by whom it was made, had jurisdiction to-try and decide, not only the particular matter in issue, but also the subsequent suit itself in which the issue is subsequently raised. In this respect the enactment goes beyond Section 13, of the previous Act X of 1877, and also, as appears to their X Lordships, beyond the law laid down by the Judges in the Duchess of Kingston''s case (1776) 2 Smith''s L. C. 10th Ed. 713. They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law, and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true constructions. 8. They will therefore humbly advise His Majesty that the appeal Be dismissed, and the appellants will pay the costs of the respondent, who have appeared.