1. The Special Judge in the present case raised the two issues of res judicata, on which the first defendant Gopal relied, and, further, an issue of limitation, on which, as well as res judicata, the second defendant Vishnu relied On this second issue no judgment has been recorded, and as a judgment was on the Special Judge's decision on the first issue absolutely necessary to the right adjudication of the case as regards Vishnu, the present applicant and the person really interested, we shall have to reverse the decision of the Court below; and send the case back for a fresh disposal by the Special Judge. As we have, then, to take this course, we may properly point out that the Subordinate Judge was right and the Special Judge wrong on the point of res judicata.
2. In 1871 Gopal sued Balaji, Gyanu, and Hari, averring that he had formerly taken certain land in mortgage from the first two, which land had become his property by the operation of a clause of conditional sale (lahan gahan). He had let the land to Hari, who now with the support of the other two denied Gopal's title. In such a suit, the only proper question for the Court was whether, as he alleged, Gopal had given possession to Hari as tenant. A tenant repudiating the title under which he entered, becomes liable to immediate eviction at the option of the landlord. Nor can other persons by coming in behind the tenant put themselves in the position of possessors, and force the land, lord to prove his title. This seems to have been allowed, however, in the instance in question. The suit was changed into one against Balaji and Gyanu on the conditional sale, and the decree given in January, 1872, ordered that Balaji and Gyanu were to pay to Gopal Rs. 100 within a month, or else all three defend ants to give him the property sought in the plaint.
3. By what precise steps this complete transformation of the suit took place we cannot now tell, as the judgment has perished; but the plaint shows that Gopal sued as owner, and the decree directs delivery of possession to him according to the plaint, unless the Rs. 100 be paid in a month. In the case of Robin son v. Duleep singh L.R., 11 Ch. Div., 798 James, L.J., says: 'The issues are only a proceeding in a cause for the purpose of ascertaining a fact for the guidance of the Court in dealing with the right; and what determines the right between the parties is the decree, and in order to determine what the decree really decides it is essential to see what were the rights which were in dispute between the parties and which were alleged between them.' The plaintiff Gopal having then set up a right as owner through the forfeiture clause, and the defendants insisting on a right still to recover, the decree plainly meant only to give them, by way of indulgence, one month within which to regain the land by payment. It renewed the mortgage, but with a condition which was as material a part of the decree as the advantage to follow on its fulfillment.
4. The money was not paid, and the property was given to Vishnu, who had purchased from Gopal. The Special Judge has held that Vishnu thus taking in execution in default of payment took as mortgagee, and that the right to redeem still subsisted in 1885, when this suit was brought. But it is plain that had Gopal sought to recover the Rs. 100, or any part of it, he would have been met by the terms of the decree. After the lapse of a month he was entitled to the land, and nothing else. So, too, was Vishnu as his vendee. As, then, there was no debt that could be recovered, there was, and could be, no subsisting mortgage that could be redeemed. The presumption that arises where possession only is sought by a mortgagee, and possession only is awarded, has no application where the plaintiff sues as owner, and the possession is on such a claim awarded to him subject only to a condition in favour of the defendant which the defendant fails to fulfil. No terms were added such as 'to hold until payment' or 'as security for the sum awarded.' The decree, at any rate, when executed by the Court completely transferred the mortgagor's rights to Vishnu.
5. On this point, therefore, we think the Special Judge was wrong in reversing the decree of the Subordinate Judge. But in the exercise of the revisional power of this Court we should not have interfered with his judgment on this account, he having acted within his jurisdiction; but that Vishnu has another ground on which to rely, and one that should have been fully considered before judgment was given against him. He purchased from Gopal more than twelve years before the institution of the present suit Gopal was the ostensible owner, and if Vishnu bought from him for value, ho thus acquired a right, which under Schedule II of Article 134 of the Limitation Act (XV of 1877) would become unassailable by the mortgagor after twelve years-Baivakhan Daudkhan v. Bhiku Sazba I.L.R.,9 Bom., 475 . We have not Gopal before us, nor have we the materials for determining whether Vishnu really purchased from him or not. We will send the case back that the Special Judge may determine on the fact whether Vishnu's purchase is proved, and decide the case accordingly. The rule is made absolute. Costs of this application to be borne by the opponent.