1. The plantiffs as owners of the land described in the plaint sued to recover possession of the laud from the defendants with mesne profits and costs. The defendants pleaded that they were owners of the land, and the plaintiffs' suit was barred, as they had brought a suit for possession previously and possession was not awarded to them. The Second Class Subordinate Judge at Jambusar framed nine issues, but he only decided issuesnot. 5 and 9, whether the claim is barred by res judicata as contended by the defendants, and whether the question of the proof of the plaintiffs' sale deed, dated June 28,1919, and the question of the status as yearly tenants are res judicata as contended by the plaintiffs, respectively. He held that the plaintiffs' claim was not barred as res judicata, a point which does not arise in the present appeal, and he also held that the questions referred to in issue No. 9 and which are incorporated in issues Nos. 1 to 3 are res judicata by reason of the High Court decree in Second Appeal No. 746 of 1923. On appeal this decree was confirmed by the District Judge of Broach, holding that the defendants' claim to be owners of the land is barred by res judicata. The defendants make this second appeal.
2. It will be necessary to set out the pleadings in the former suit in some detail. The plaintiffs claimed to be owners of the land, and said the defendants were annual tenants, and they brought suit No. 155 of 1921 to recover possession from the defendants. The first Court held that the plaintiffs were the owners of the land, and defendants Nos. 1 and 4 were tenants from year to year and were not in adverse possession of the disputed land, and that the plaintiff was entitled to recover possession, and he passed a decree for possession. The defendants appealed to the District Court, and the District Judge framed five issues, of which No. 1 was, Do plaintiffs prove that defendants Nos. 1 and 4 were their annual tenants, and issues Nos. 3 and 4 referred to the validity of the notice to quit, and he confirmed the decree of the lower Court and dismissed the appeal. The defendants then made a second appeal to the High Court No. 746 of 1923. The High Court set aside the decree of the lower appellate Court for possession on the ground that the plaintiffs had failed to prove that defendant No. 4 had been given a notice to quit. But they gave the plaintiffs a decree against the defendants for use and occupation of the premises for three years before suit, and passed a decree for that amount. It has been argued by the learned advocate for the appellant that there was no contention between the parties as regards rent or mesne profits, which were not claimed in the plaint. The judgment of the High Court, however, proceeds on the finding of the lower Court that defendants Nos. 1 and 4 were annual tenants. There is no question of permanent tenancy in this case. The question was whether the plaintiffs or the defendants were the owners of the plaint lands, and although the High Court did not directly find on the issue regarding ownership, their judgment clearly proceeds on that basis, inasmuch as damages for use and occupation were awarded to the plaintiffs and the defendants were held entitled to a notice to quit on the basis that they were annual tenants. The question then arises whether as the plaintiffs' suit for possession was ultimately dismissed, the finding on the question of the ownership of the land can be held to be res judicata. The learned advocate for the appellants has relied on the cases of Ramasami Reddi v. Marudai Reddi I.L.R. (1923) Mad. 453 Midnapwr Zamindari Company, Ld. v. Naresh Narayan Roy I.L.R. (1920) cal. 460 and Daudbhai Allibhai v. Daya Rama I.L.R. (1918) Bom. 568 : 21 Bom. L. R 363 In Ramasami Reddi v. Marudai Reddi the defendants in answer to an ejectment suit pleaded that they were entitled to occupancy rights in the land, or that in any event they were tenants from year to year, and that as notice had not been given to them, the suit was not maintainable. The District Munsif held that the defendants had no occupancy rights, and that they were tenants from year to year, but he dismissed the suit for want of notice to quit. The lower appellate Court and the High Court confirmed the decree on the same ground. The plaintiff having subsequently given a proper notice to quit instituted the present suit in ejectment. The defendants again set up their occupancy rights. The plaintiff pleaded that the question of occupancy rights was res judicata. It was held that the question of occupancy rights of the defendant was not res judicata by reason of the decision in the previous suit. The decision proceeds on the authority of the Privy Council case of Midnapur Zamindary Company, Ld. v. Naresh Narayan Roy I.L.R. (1920) cal. 460 about which case it is said (p, 458) :-
That case exactly covers the present) case. Here there was no necessity really to find on the question of permanent occupancy set up by the defendant, for even if the Court had assumed that he had no such occupancy right the result would have been the same a tenancy from year to year would result and that would require a notice to quit to put an end to it.
3. But in that case it seems that the defendant admitted the ownership of the plaintiff, and only set up a plea that they could not be ejected from the land by reason of certain legal incidents of their tenancy. In the present case the ownership of the plaintiffs was denied, and the question of the necessity of notice will not arise until it had been found as to whether the plaintiffs were the owners of the land in dispute. In Daudbhai Allibhai v. Daya Rama the enhancement of rent was consistent with permanent or annual tenancy. In the present case we are not concerned with the nature of the tenancy, but with the actual ownership of the land. All the cases which have been quoted by the learned advocate of the appellants were considered in Barjorji v. Shripatprasadji (1926) 29 Bom. L.R. 215 in which it was held that a finding in a previous suit between the parties that the tenant is not the owner of the trees in dispute because he is not a permanent tenant is res judicata on the question of permanent tenancy in a subsequent ejectment suit between the same parties. In that case the plaintiff's claim for the value of the trees was awarded, though the claim for possession was negatived. In that case the claim for possession was disallowed on the ground that under Section 84 of the Bombay Land Revenue Code a notice to determine the annual tenancy of the defendants was necessary. That is the same as in the present case, Shah J. says at p. 219 :
The position is plain that if the decision as to the plea of permanent tenancy was on any ground unnecessary in the previous suit, even though a finding be recorded, it could not be said to have been finally decided. But the pleadings in the previous litigation, so far as the present case is concerned, are perfectly clear, and leave no doubt that the finding was necessary.
4. At p. 221, in Fawcett J.'s judgment, he distinguishes the case in Bavidbhai Allibhai v. Daya Rama on the ground that the contention about the plaintiff's right to enhancement was consistent with the defendant in that suit being a permanent tenant, and with regard to the remarks of Beaton J. in the same judgment he points out that the decree passed ' is precisely the decree which would follow if the Court had held that the tenant was a permanent tenant and not a yearly tenant, etc.', and says, 'here the same decree would not have been passed, if the defendant had been held to be permanent tenant.' That will apply to the present case, because the same decree would not have been passed if the defendants were the owners of the land in suit. Then with regard to the Privy Council case in Midnapure Zamindary Company, Ld. v. Naresh Narayan Roy and the Madras decision in Ramamini Reddi v. Marudai Reddi, the test there laid down is this, whether it is necessary or not to come to a finding such as this one whether the defendant is or is not a permanent tenant. In those two cases it was not necessary to come to a finding upon that question, whereas in the present case, the case I am quoting from, it was held that it was necessary to have such a finding. Applying that teat, it will be seen that in the former litigation the question of whether the plaintiff was or was not the owner of the land or whether the defendant was the owner was an issue which it was necessary to decide before any question such as notice could arise. Those issues were fought by the defendants and contested up to the High Court, and decided against them. In Dinkar v. Anant : AIR1928Bom349 the cases are considered, and it was held that when in a former suit between the parties there are several issues which are found against the plaintiff, who has appealed against all of them and there have been adverse findings against him, the decision on all the issues is res judicata in a subsequent suit between the parties. That exactly applies to the facts of the present ease, where in the former litigation there were several issues found against them, and on appeal to the High Court there were adverse findings against them except in so far as the question of the suficiency of the notice was concerned. The remaining case quoted is Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee I.L.R. (1886) Cal. 17 where a suit was dismissed on the ground that no notice to quit had been served, and it was held that where a former suit between the same parties in respect of the same subject-matter has been dismissed on a preliminary point, a finding in that suit on the mertis in the plaintiff's favour will not bar the defendant from putting forward the same defence on the merits in a subsequent suit by the same plaintiff against the same defendant. This does not apply to the facts of the present case.
5. On a consideration of all these cases, I am of opinion that the view of the lower Court is correct, and that the question of the plaintiffs' ownership of the land and the defendants' tenure as ordinary tenants has been heard and finally decided. The suit was dismissed merely on the ground that there was no notice to quit, A proper notice to quit has now been given. The decree of the lower appellate Court will be confirmed, and the appeal dismissed with costs.