JUDGMENT Mitter, J. - Defendant No. 1 is the landlord of a holding which belonged to Defendant No. 2. The tenant, viz., Defendant No. 2, failed to pay rent, with the result that Defendant No. 1 instituted a rent-suit, No. 72 of 1930, against him and recovered a decree. In execution of that decree, the holding was put up to sale. The Plaintiff purchased at that sale. The sale-certificate describes the property purchased by the Plaintiff to be eighteen plots of land comprising an area of 22 bighas 12 cottas 15 chhataks and the rent payable was Rs. 24 a year. The sale was held at a time when the record-of-rights under Ch. X of the Bengal Tenancy Act was being prepared. After obtaining symbolical possession, the Plaintiff went to take actual possession. He could not, however, get possession of three plots out of the said eighteen plots of land, the area whereof was 7 bighas odd. In the record-of-rights which has been finally published, those three plots have been recorded to appertain to a lakhiraj, but in respect of that lakhiraj the tenant was not Defendant No. 2, but some other persons. After the publication of the record-of-rights, Defendant No. 1 instituted a suit for rent against the Plaintiff, being rent-suit, No. 1812 of 1935, wherein he claimed rent at the rate of Rs. 24 a year. The present Plaintiff, who was Defendant in that suit, pleaded that the area of the tenancy was 15 bighas odd and not 22 bighas as described in the sale-certificate and accordingly, the landlord was not entitled to claim rent from him at the rate of Rs. 24 a year, but at a reduced rent, viz., a rent which may be determined to be payable on an area of 15 bighas odd. Four issues were framed in that rent-suit: (1) What is the annual jama for the holding in question? (2) Is the Defendant entitled to any abatement of rent? If so, to what extent? (3) Is the description of the holding in question, as given in the plaint, correct? (4) To what relief, if any, is the Plaintiff entitled? 2. The claim made by the tenant for abatement of rent rested upon the question as to what was the area of the holding--22 odd bighas, as described in the sale-proclamation, or 15 bighas odd as was his case. Issues Nos. (4) To what relief, if any, is the Plaintiff entitled? 2. The claim made by the tenant for abatement of rent rested upon the question as to what was the area of the holding--22 odd bighas, as described in the sale-proclamation, or 15 bighas odd as was his case. Issues Nos. 2 and 3 were taken together for consideration. The Court decreed the rent-suit in full. We will deal with the decree passed in the rent-suit later on, when we will deal with one of: the questions, raised before us, viz., the question of res judicata. 3. The decree in the rent-suit was passed on November 28, 1935. On November 16, 1939, the Plaintiff, that is to say, the tenant, instituted the, suit out of which this appeal arises against the landlord as Defendant No. 1. In the suit he prayed for a declaration that his liability towards his landlord would be not Rs. 22 a year, but Rs 14-13-4 pies a year on the ground that he is entitled to get an abatement of Rs. 7-8 per year. His plaint proceeded upon the basis that he got the holding at the rent-sale held at the instance of Defendant No. 1 on the representation made by the Defendant No. 1 that the holding comprised eighteen plots of land with an area of 22 bighas odd, but in fact the holding which he purchased at the said rent-sale consisted of fifteen plots only with an area of 15 bighas odd. He wanted to bind the Plaintiff by estoppel, i.e., his case proceeded upon the footing that the area of the holding must be taken to be, so far as the Plaintiff is concerned, by reason of the doctrine of estoppel, to be 22 bighas and odd, but, inasmuch as he has got possession of only 15 bighas for no fault of his, he is entitled to proportionate abatement. 4. 4. The defence of Defendant No. 1 was that, at the time of his purchase at the rent-sale, the Plaintiff knew that the holding, though described by him to comprise eighteen plots of land with an area of 22 bighas, was in fact of a lesser extent comprising fifteen plots of land with a total area of 15 bighas odd; that is to say, the Defendant No. 1 attempted to meet the case of estoppel as made by the Plaintiff in his plaint on the ground that the Plaintiff, in making his purchase at the rent-sale, had no occasion to rely upon his statement, because at that time he knew the correct state of affairs. Further, he pleaded that the claim of the Plaintiff to abatement of rent was barred by the doctrine of res judicata by reason of the decision made against him by the Munsif in rent-suit, No. 1812 of 1935. 5. In deciding the question of estoppel, both the Courts below proceeded upon the footing that the representation as to the extent of the holding made by the landlord, Defendant No. 1, was put in the sale-proclamation where the holding was described as consisting of eighteen plots of land with an area of 22 bighas of land. Both the Courts below proceeded to consider the question of estoppel in the light of the Defendant No. 1's written statement, that is to say, the only question considered by those two Courts was whether the Plaintiff before his purchase at the rent-sale knew that the holding was in fact lesser in extent than what had been described in the sale-proclamation. The defence of res judicata was also overruled by both the lower Courts. The decree of the lower Courts declared that the Plaintiff, viz., the tenant, was entitled to a declaration that his liability was to pay rent at the Tate of Rs. 16 per year. This was the effect of the decree. 6. The landlord, viz., the Defendant No. 1, preferred a Second Appeal to this Court. The decree of the lower Courts declared that the Plaintiff, viz., the tenant, was entitled to a declaration that his liability was to pay rent at the Tate of Rs. 16 per year. This was the effect of the decree. 6. The landlord, viz., the Defendant No. 1, preferred a Second Appeal to this Court. That Second Appeal came before our learned brother Chakravartti J. Three points were urged before him: namely, (1) that the claim of the Plaintiff to abatement of rent was barred by res judicata by reason of the decision in rent-suit, No. 1812 of 1935; (2) that the Defendant No. 1, was not estopped from denying the fact that the extent of the holding was not 22 bighas of land or that it did not comprise 18 plots; and (3) that, in law, even if the Plaintiff established his case of estoppel and the claim for abatement was not barred by res judicata, he could not claim a proportionate abatement of rent. 7. Chakravartti J. overruled all those contentions. On the question of estoppel, however, he followed the decision of two Division Benches of this Court, which he was bound to follow, but stated that he was extremely doubtful whether a plea of estoppel could succeed against the decree-holder when the representation of fact attributed to him was contained in a sale-proclamation issued by the Court. We would quote the exact language used by him in his somewhat exhaustive judgment: Sitting singly, I am bound to follow these decisions and give effect to the Plaintiff's contention. I do, however, feel some doubt on one point which Mr. Chaudhury (learned advocate for Defendant No. 1, Appellant) did not argue and which, when I put it to Mr. Mukherjee (learned advocate for the Plaintiff) he was not able to meet to my satisfaction. The basis of the rule of estoppel is (a) that a statement of the existence of a fact has been made by the Defendant or an authorised agent of his to the Plaintiff or some one on his behalf; (b) with the intention that the Plaintiff should act upon the faith of the statement and (c) that the Plaintiff has acted upon the faith of that statement. 8. 8. Then he referred to the provisions of Order XXI, Rule 66 of the CPC and pointed out that duty is cast upon the Court to settle the terms of the sale-proclamation. Accordingly, a statement of fact occurring in the sale-proclamation cannot in law be regarded as a statement of the decree-holder; it is the statement made by the Court for the benefit of the intending bidders. He concludes this part of the judgment by observing thus: 9. Giving it the best consideration I am capable of, I am bound to say that, in spite of those decisions, a doubt lingers in my mind as to whether there is any representation at all in this case on the basis of which the decree-holder can be affected by the rule of estoppel. 10. It is for this "lingering doubt" in his mind, as he has himself expressed in the judgment, that he has given leave to appeal under Clause 15 of the Letters Patent. 11. The learned advocate appearing for the Appellant, viz., Defendant No. 1, urges before us all the points that he urged before Chakravartti J. Over and above he submits that, as the Plaintiff's case is based on the statement made in the sale-proclamation, there is no scope for the application of the doctrine of estoppel, as the statement made therein cannot be regarded to be the statement of the decree-holder, but must in law be regarded as the statement made by the Court for the benefit of intending bidders. 12. We will first of all deal with the question of res judicata. Two reasons have been given by our learned brother for repelling the contention of the Appellant in respect of that matter. He pointed out that only the judgment passed in rent-suit, No. 1812 of 1935, was on record. Neither the plaint nor the written statement in that suit had been exhibited in the case. In these circumstances he came to the conclusion that it was extremely doubtful whether the Plaintiff in that suit had included the three plots in his suit. He pointed out that only the judgment passed in rent-suit, No. 1812 of 1935, was on record. Neither the plaint nor the written statement in that suit had been exhibited in the case. In these circumstances he came to the conclusion that it was extremely doubtful whether the Plaintiff in that suit had included the three plots in his suit. Then he referred to the defence, as summarised in the judgment and stated that the "defence is not explicable "except on the hypothesis that the Plaintiff in that suit had in "his statement of claim included these three plots within the "holding for the rent of which he was suing." He concludes by saying that in this state of the record the point was obscure as to whether the Plaintiff in that rent-suit had in his statement, of claim, included those plots within the holding for the rent of which he was suing and by reason of the obscurity existing, he could not give effect to the plea of res judicata, because he was not in a position to say whether the point as to whether the tenant was entitled to abatement of rent or not was directly in issue in the rent-suit. It, however, appears from his judgment that he intended to rely more upon his second reason and that reason we will presently state, for repelling the contention of the landlord's contention that the Plaintiff's claim for abatement was barred by the doctrine of res judicata. He said that reading the judgment it appeared to him that the Court in deciding the rent-suit did not repel the defence of the tenant which was that the Plaintiff was not entitled to claim rent at the rate claimed by him in the plaint, as he, the tenant, was entitled to proportionate abatement. He further said that, in deciding the rent-suit, the Court had stated specifically that it was "not necessary to decide the issue in question for the purpose "of this suit and left it open so that the Defendant may again "agitate the matter by taking proper steps." 13. We have gone through the judgment passed in that rent-suit and in making the aforesaid observations, probably our learned brother read issue No. 2 in the place of issue No. 3 in the passage occurring in the judgment of the learned Munsif, where the said observation was made. We have gone through the judgment passed in that rent-suit and in making the aforesaid observations, probably our learned brother read issue No. 2 in the place of issue No. 3 in the passage occurring in the judgment of the learned Munsif, where the said observation was made. We have already stated that issue No. 2 in the rent-suit was in the following terms: Is the Defendant entitled to any abatement of rent If so, to what extent.? And issue No. 3 ran thus: Is the description of the holding in question as given in the plaint correct? 14. The relevant portion of the judgment in the rent-suit is as follows: It is, however, not necessary to decide the land question for the purposes of this suit and I would leave it open, so that the Defendant may agitate the matter by taking proper steps. In these circumstances, point No. 2 is answered in the negative and point No. 3 is left open. 15. The learned Judge answered issue No. 2 in the negative, i.e., he held that the Defendant in that suit, viz., the tenant, was not entitled to claim abatement. In this state of the record, we shall have to examine the question of res judicata in some detail. We may at once say that we agree with the decision of our learned brother Chakravartti J. on that point, though not for the reasons given by him. We would state the reasons on which we support his conclusion on this point. 16. In the aforesaid rent-suit an issue was framed as to whether the tenant was entitled to proportionate abatement of rent. As we have already pointed out, the Court gave a decision on that issue and that decision was that the tenant was not entitled to claim abatement of rent. That decision would be res judicata only if the issue bearing on the question of abatement of rent was directly and substantially in question. If it was an incidental issue the decision would not operate as res judicata either in a subsequent rent-suit or in any other later suit between the parties. That decision would be res judicata only if the issue bearing on the question of abatement of rent was directly and substantially in question. If it was an incidental issue the decision would not operate as res judicata either in a subsequent rent-suit or in any other later suit between the parties. The question as to whether an issue on the rate of rent in a rent-suit or a similar issue in a suit to enforce a recurring liability would be res judicata or not would depend upon the question as to whether that issue was directly and substantially in issue or arose only incidentally. If the issue was limited as to cover the period of the suit only or was decided in a manner so as to cover only the period for which the rent-suit or the suit to enforce the recurring liability was instituted, the issue would be considered to be raised incidentally; if, however, it would appear from the proceedings of the rent-suit or the suit to enforce a recurring liability that the intention of the parties was to raise the question for all times to come and the decision of the Court was intended to cover the liability for all times to come, then and then only the point will be considered to be substantially in issue. This is the principle which is laid down by a Division Bench of this Court in the case of Gnanada Gobinda Chaudhuri v. Nalini Bala Debi (1925) 30 C.W.N. 593 and that case has been followed ever since. The claim, to proportionate abatement of rent as made in that rent-suit and as made in the suit before us is intimately connected with the question of area,. In fact that claim was founded by the tenant on what he alleged to be the deficiency in the area. Issue No. 2 in the rent-suit did not decide that issue, viz., issue No. 3, but kept the question about the area open between the parties, it must be taken that the Court gave decision on the issue as to whether the Plaintiff was entitled to claim abatement of rent or not only for the period of that rent-suit, viz., for the purpose of making a decree for the period for which rent was claimed in that suit. It is on this ground that we hold that the judgment in the aforesaid rent-suit is not res judicata. 17. The claim for abatement of rent rests on the application of the doctrine of estoppel. If the Plaintiff, Respondent before us, is not able to invoke the doctrine of estoppel in his favour, no further question arises. But if the question is answered in his favour the further question will arise, viz., whether he will be entitled to claim proportionate abatement or not. We will, accordingly, deal with the question of estoppel first. 18. We have already summarised the pleadings of the parties and have indicated the basis on which the suit proceeded in the Courts below. The point that the sale-proclamation did not embody the statement made by the executing decree-holder, but was a statement made by the Court as a result of an adjudication made at the time of settling the sale-proclamation was never made by the Defendant-Appellant in the Courts below. The point was not even urged by the Defendant-Appellant before our learned brother and our learned brother has stated in his judgment that it was he who raised the point and was doubtful whether the decisions of the two Division Benches, which held that the statement in a sale-proclamation could support the plea of estoppel, were correct in law. If it had been a pure question of law, which would only involve the consideration of the provisions of Order XXI, Rule 66, we would have given the matter our fullest consideration and if we thought that the views expressed by our learned brother were correct, we would have referred the matter to a Full Bench, though, by the way, those decisions have stood the test of time. But we do not consider the question to be a pure question of law. No doubt the executing Court must issue notices both on the decree-holder and the judgment-debtor to appear before it for the purpose of enabling it to settle the terms of the sale-proclamation. Description of the property to be inserted in the sale-proclamation is a necessary and material item; in fact, it is the first item mentioned in Order XXI, Rule 66 of the Code. The matters appearing in the sale-proclamation are inserted by the executing Court. In the application for execution, the decree-holder has to specify the property against which he wishes to proceed. The matters appearing in the sale-proclamation are inserted by the executing Court. In the application for execution, the decree-holder has to specify the property against which he wishes to proceed. If, in pursuance of the notice under Order XXI, Rule 66, the judgment-debtor appears and controverts the statement made by the decree-holder, as to the description of the property as given either in his application for execution, or, as stated by him at the time of the settlement of the sale-proclamation, the Court would have to adjudicate; but if the judgment-debtor does not appear, the statement of the decree-holder is, as a matter of course, put in the sale-proclamation. It cannot, therefore be said as a matter of law that the statement concerning the description of the property as contained in the sale-proclamation is in no case the statement of the executing decree-holder, but in every case is the statement of the Court. The question raised in that part of the judgment, according to us, would involve an investigation into facts. If that question had been raised by the Defendant in the Court of first instance, the Plaintiff could have proved, by calling for the records of the rent-execution case, that the statement as appearing in the sale-proclamation was in fact the statement of the decree-holder and was not the statement of the Court made by it after settling the controversies between the decree-holder and the judgment-debtor on the question as to what description should be put in the sale-proclamation. To allow the Defendant Appellant to take a point of this nature for the first time in a Second Appeal would, in our opinion, have the effect of robbing the Plaintiff-Respondent of the opportunity of a case which he could have made for the purpose of repelling that contention of the Defendant-Appellant on facts. As the case proceeded in the lower Court on the footing that the sale-proclamation embodied the statement as to the description of the property as made by the decree-holder, we hold that the Plaintiff has satisfied the first element of estoppel. Our learned brother has held that the Plaintiff-Respondent did purchase on the faith of the statement as made in the sale-proclamation. The second element is also satisfied. Our learned brother has held that the Plaintiff-Respondent did purchase on the faith of the statement as made in the sale-proclamation. The second element is also satisfied. By acting on the faith of that statement he acted to his prejudice, for he has got by his purchase an area of 15 bighas odd of land, when it was represented to him by the decree-holder in the rent-suit that the area of the holding was 22 bighas odd. 19. All the three elements of estoppel have thus been satisfied and the Plaintiff is entitled to say to the Defendant-Appeallant that, so far as he is concerned, it must be taken that the area of the holding is 22 bighas odd and not 15 bighas odd as it actually is. 20. The question that remains for consideration is whether the plea of estoppel being established by the Plaintiff he is entitled to claim abatement of rent. That question was considered by Sir Francis Maclean C.J. and Banerjee J. in the case of Doyal Krishna Naskar v. Amrita Lal Das (1901) ILR 29 Cal. 370. Where the Plaintiff-Respondent had purchased not by private treaty but at a court-sale, he cannot claim, as was pointed out by Banerjee J. in that case and as has been pointed out in various other cases, a proportionate refund of the price, nor can he claim compensation. For the aforesaid reasons, both the learned Chief Justice and Banerjee J. held that the purchaser at an execution-sale of a holding is, under those circumstances, entitled to claim proportionate abatement of rent. The sale-proclamation, on the basis of which the claim was made, as in the case before us, described the tenure in default to comprise 400 bighas though in fact it was 250 bighas only. The auction-purchaser claimed proportionate abatement of rent from the landlord, who was the decree-holder of the decree, in execution of which he had purchased the property and the claim for abatement of rent was upheld by the Division Bench. 21. The result is that this appeal is dismissed with costs. Sharpe, J. 22. I agree