James, J.

1. This is a second appeal from the decision of the Subordinate, Judge of the Second Court at Patna arising out of a suit for arrears of rent. The plaintiff is a co-sharer in the estate which bears tauzi No. 28 on the revenue roll Of Patna District. His share in the estate, as recorded in the Collector's register, is of two annas but there has been a private, Partition in the estate and the share of the plaintiff in the patti in which the defendants' holding lies is two annas eight pies. In a suit instituted for arrears of rent which was instituted in 1931 against the defendants of the present suit the defence was taken that the plaintiff was entitled only to a two annas share of the rent and not to the share claimed, that is to say, that he was entitled to 1/8th of the rent and not to 1/6th. The parties went to trial on this issue; and the learned Munsif, erroneously imagining that he was strictly bound by the share shown in register D and so required to ignore private partition made between the parties, decided that the plaintiff was entitled only to a two annas share. In the present suit the Munsif held that he was bound by the former decision, but on appeal the Subordinate Judge, pointing out that the former decision, was erroneous, decreed the plaintiff's suit and the defendants have now come up in second appeal from that decision.

2. It appears to be sufficiently clear that the decision of the learned Subordinate Judge is correct to this extent, that he has properly understood the facts and has given proper weight to the entry in the Record of Rights. In the former litigation the Munsif erred in supposing that the provision of S. 60, Ben. Ten. Act, or any of the provisions relating to land registration prevented him from taking notice of a private partition whereby the parties enjoyed their shares in severalty and indeed if this partition had been made by a Civil Court, the Munsif would probably have taken a different view of the matter. But when the matter has once been at issue between the parties, and has been decided, whether wrongly or rightly, it must be come res judicata. The question cannot be again-agitated in a suit between the same parties, and on the same issue, on the ground that the earlier decision was incorrect, as was pointed out by Shah, J., in Sitaram v. Laxman, 1921 Bom 87 [LQ/BomHC/1921/63] = 64 IC 162= 23 Bom LR 749= 45 Bom 1260 (FB) and by the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar, 1928 Cal 777 [LQ/CalHC/1928/318] = 115 IC 593 = 33 CWN 126= 48 CLJ 327= 56 Cal 723 [LQ/CalHC/1928/318] (FB).

3. It is suggested, on behalf of the respondent that the question between the parties was not finally decided in the rent suit, because the Munsif in that suit remarks that he is concluded by register D for the purposes of that suit, that is to say, as a Court trying a rent suit. But he could not decide anything in that suit, otherwise than for the purposes of the suit. It is sufficiently obvious that the decision was necessary for the purpose of that suit and that the question was directly and substantially in issue between the parties. My attention is' called to the decision in Gnanada Gobinda Choudhri v. Nalini Bala Debi, 1926 Cal 650 [LQ/CalHC/1925/480] = 94 IC 837= 30 CWN 593= 43 CLJ 146, wherein a remark was made that if the decision in a rent suit was arrived at merely for the purposes of deciding the right or liability for the period involved in the suit, then the issue was raised not directly and substantially but collaterally or incidentally. On that point it may be remarked that no Court hearing a rent suit can decide anything otherwise than for the purposes of deciding the right or liability for the period involved in the suit, and that the actual decision in that case does not favour the argument of the learned Advocate. If the effect of the decision of the rent suit is regarded as merely deciding that in 1931 the plaintiff was entitled only to the share recorded in register D and not to any share of the claim which was based on an earlier partition, it would be necessary for him, if he raises that claim in the same plaint in the present proceedings, to show that by some events which have happened since 1931, he has become entitled to a larger share.

4. The learned Advocate argues that in Shyam Lal v. Brindaban Chandra, 1924 Cal 460 [LQ/CalHC/1922/321] = 72 IC 655 it was held that where a Court dismisses a rent suit holding that the relationship of landlord and tenant was not established, the decision is conclusive on one point and one point alone, namely that the defendant was not, the tenant of the plaintiff during the years for which rent was claimed; and the decision cannot operate as res judicata on the question of title in a subsequent suit to eject the defendant as a trespasser. But that head-note states the effect of the decision somewhat too broadly. In a suit for arrears of rent accruing from 13th April 1910 the Court had held that there was no relationship of landlord and tenant between the parties and had dismissed the suit. In 1918 the plaintiff instituted a suit to eject the defendants on the allegation that they were trespassers. The Court pointed out that the effect of the decree in the former rent suit was that the defendants must be deemed not to have been the tenants of the plaintiff since 13th April 1910. In the suit which was instituted in 1918 it was often to the plaintiff to prove that he had title to the land and that at some time between 21st May 1906, and before 13th April 1910 , he had been in possession, railing which his suit must be dismisses. It appears to me to be clear that in the case with which we are now dealing the decision of the Munsif, in the earlier litigation, though it was erroneous, must be treated as constituting res judicata. This appeal must be allowed the decree of the Subordinate Judge must be set aside and the decree of the Munsif restored. Each party may bear his own costs in this Court and in the lower appellate Court.