1. This second appeal arises out of a suit for arrears of rent for the years 1320 to 1323 in reject of 48 bighas and 5 cottahs of land. This land was originally held by the defendant and others as occupancy tenants. They executed a mortgage with possession in favour of the plaintiffs for a sum of Rs. 1,000 and the plaintiffs took possession. Subsequently in 1909 the defendants took a lease of the same land, patta and kabuliyat being exchanged. The terms of the lease were that the defendants were to pay 70 maunds of wheat, value Rs. 225, to the plaintiffs as rent. The plaintiffs have accordingly sued at this rate. The suit was decreed in the Court of first instance and in the lower Appellate Court and against this decree the defendants have made this second appeal to this Court.

2. The principal argument adduced on behalf of the defendants, or rather the single defendant who has contested the suit, is that the rent fixed in the lease was a money rent not a produce rent--and that consequently the defendants are entitled to the benefit of section 48 of the Bengal Tenancy Act.

3. In the Court of first instance it was held by the learned Subordinate Judge that the defendants are not under-raiyats and that consequently section 48 of the Bengal Tenancy Act did not apply. The learned District Judge on appeal, however, found that the defendants were under-raiyats and that they would have been entitled to the benefit of the section except for the fact that the rent was a produce rent and not a money rent.

4. We have examined the kabuliyat and are of opinion that the rent is a produce rent and not a money rent. It would, therefore, be immaterial whether the defendants are raiyats or under raiyats. But whatever be the true effect of the kabuliyat, the plaintiffs are entitled to succeed. It appears that in 1912 they instituted a suit against these defendants for the rent of 1318 and 1319, at the rate at which they now claim, and obtained a decree. The general rule of law is that a decision in a previous rent suit as to the amount of rent annually payable does not operate as res judicata in a suit for the rent of subsequent years, although it may give rise to a presumption that the rent remains the same, but this rule does not apply to a case of the kind now before us. The present suit is one based on a contract between the parties and the question of the rate of rent under the contract was a point in issue in the previous suit. That suit was between the same parties, the matters in dispute were decided by a Court of competent jurisdiction and it is not now open to the parties to re-agitate them. This was the view taken in Rajendra Nath Ghose v. Tarangini Dasi 1 C.L.J. 248 and it has been followed in a long series of decisions. In this Court we may refer to the decision in Musammot Zalikha Bibi v. Mahant Krishna Dayal Gir 41 Ind. Cas. 778 : 2 P.L.W. 146. It is true that there is a subsequent decision of this Court--Bansraj Lal v. Moti Lal 42 Ind. Cas. 425 : 3 P.L.W. 360 : (1918) Pat. 21--which might appear, at first Bight, to conflict with the decisions we have referred to, but the case was an entirety different one and we do not find that the principle which is laid down in Rajendra Nath Ghose v. Tarangini Dasi 1 C.L.J. 248, was dissented from. The case was a very peculiar one. The plaintiff was forced by the Court against his will to include certain plots in his plaint; he protested and stated that he intended subsequently to bring an action on this ground. It was held that the principle of estoppel in such a case would not apply. It is clear, therefore, that this was an entirely different case which has no bearing on the case now before us. We dismiss this appeal with costs.