TMI Blog1928 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... for the year 1327 B.S. and at the rate of ₹ 29-10-6 for the years 1328 to 1330 B. S. The Subordinate Judge on appeal by the plaintiffs gave them a decree for all the years at the rate of Es 38-6-6. The defendants have then appealed to this Court. 2. The Subordinate Judge has found the following facts : The mahal in which the holding in suit is situate is in the hands of a receiver who lets it out in ijara for terms, and the ijaradar in his turn also sub-lets it in darijara for similar terms, that although there was abundant evidence in the shape of contested decrees, etc., for rent showing that the rent of the holding was ₹ 38-6-6 the darijaradar who preceded the plaintiffs in collusion with the defendants got the rent of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sting rent of the holding was never put in issue before him, but that all that was decided by him was what the rate of enhancement should be. Quite apart from any question of fraud or collusion the decision under Section 105, therefore, will not operate as a bar to the investigation of the question as to what was the rate of rent at the date of the khatian for no such question was raised or decided in the proceedings under Section 105 Nawab Bahadur of Murshidabad v. Ahmad Hossain [1917] 44 Cal. 783 and Priyambada Debi v. Priya Nath Banerjee. The present suit being one in which the plaintiffs have asked for a decree at the old rate of rent, and they having succeeded in establishing by evidence notably, contested decree for rent previously ob ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rjured evidence and satisfies the requirements of the decision in the case of Nanda Kumar v. Ramjiban [1914] 41 Cal. 990 and is, in my opinion, sufficient to vitiate the order of the Court that is procured thereby. When a subsisting judgment, order or decree is set up by one party as a bar to the claim of the other party, it is not necessary for the latter to bring a separate suit to have the same set aside but it is open to him in the same suit in which it is sought to be used against him to show that it was obtained by fraud or collusion. Rajib Panda v. Lekhan Sendh [1900] 27 Cal. 11 Nistarini Dassi v. Nundo Lall Bose [1899] 26 Cal. 591 Aswini Kumar Samuddar v. Banamali. Chakrabarty 21 C.W.N. 594 Bansi Lal v. Dhapo [1902] 24 All. 242 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
