1. This is an appeal by the plaintiff against the decision of the Assistant Judge at Nasik dismissing the suit. The few facts relating to the present dispute can be briefly stated. On August 22, 1927, the plaintiff passed a sale deed in defendant's favour for Rs. 3,000. It is the plaintiff's case that though the transaction assumed the form of a sale-deed, it was in fact a mortgage. He has filed the present suit for accounts under Section 15 D of the Dekkhan Agriculturists' Relief Act, alleging that the transaction of 1927 was in fact a mortgage and that the consideration was only Rs. 1,700. The defendant contended that the present suit is barred by res judicata and that the transaction of 1927 was a sale out and out and that the consideration for the sale was Rs. 3,000 and not Rs. 1,700 as stated by the plaintiff in his plaint. The trial Court held that the suit is not barred by res judicata and that the transaction of 1927 was a mortgage and that the consideration for the mortgage transaction was only Rs. 1,700. It, therefore, found that Rs. 2,320-12-0 are due to the defendant after taking accounts under the Dekkhan Agriculturists' Relief Act. Against that decree the defendant filed an appeal to the District Court at Nasik. The learned Assistant Judge who decided the appeal has held that the present suit of the plaintiff was barred by res judicata and that the transaction was a sale out and out and not a mortgage and that Rs. 3,000 was a consideration for the sale deed, and in consonance with these findings the appeal was allowed and the suit was dismissed with costs. Against this decree the plaintiff has come in appeal.
2. Now, Mr. Kotwal, the learned advocate for the appellant, contends that the decision of the appeal Court on issue No. 1 about res judicata is wrong. I have to state a few additional facts in order to understand the plea of res judicata. Other creditors of the plaintiff had obtained decrees against him and in execution of those decrees attached the present suit property as belonging to the present plaintiff alleging that the apparent sale of 1927 was in fact a mortgage. The present defendant applied on November 30, 1931, for raising the attachment. That application was, however, dismissed on July 12, 1932. The present defendant thereupon filed Suit No. 137 of 1934 in Sinnar Court praying for a declaration that he was the owner of the suit property and for a declaration that the properties are not liable to be attached and sold in execution of decrees of defendants Nos. 1 and 2 against defendant No. 8. Defendants Nos. 1 and 2 were the other creditors of the present plaintiff and defendant No. 3 was the present plaintiff. The Sinnar Court held that the valuation of the suit property was more than Rs. 5,000 and the suit was, therefore, transferred to the Nasik Court and it was re-numbered as suit No. 425 of 1935. There the contention of defendant No. 3, who is the present plaintiff, was that the sale deed of 1927 was a bogus sale deed not intended to pass any title and that it was executed in order to defraud the creditors of defendant No. 3 without any consideration. In the trial Court several issues were raised, but issues Nos. 3 and 8 appear to be important. Issue No. 8 was : 'Whether the plaintiff proves his title to the suit property' and issue No. 8 was : 'Whether defendant No. 3 had any and what interest in the suit property when it was attached in Regular Darkhast No. 290 and No. 470 by Sinnar Court.' The trial Court found that the transaction of 1927 was a sale out and out and that defendant No. 3 had no interest whatsoever in the suit property which could be attached and sold in execution of the decree against him. It further held that the then defendant No. 3 failed to show that it was a hollow sale deed. A decree was, therefore, passed in favour of the plaintiff. Defendant No. 3, i.e. the present plaintiff, preferred First Appeal No. 278 of 1937. There the findings of the trial Court were confirmed and the appeal was dismissed with costs. It appears that the counsel for defendant No. 3 applied for a remand to the trial Court alleging that defendant No. 3 had mortgagor's interest in the suit property. Their Lordships did not accede to the request and observed :
This must necessarily negative any finding or issue on the basis of the sale deed having been a mortgage, for in the latter case, defendant No. 3 would have had obviously some interest left in the property-at least by way of the equity of redemption. Exhibit 5, the extract from the record of rights, supports the plaintiff's case. I am of opinion that (apart from the fact that neither side in this suit pleaded that the sale deed was a mortgage) there is enough oral and documentary evidence on the record to justify the finding of the learned trial Judge that the plaintiff had proved his title as owner and purchaser and that defendant No. 3 had no interest left in the properties at the date of the attachment.
So to me it appears that the High Court interpreted the judgment of the trial Court as holding by implication that defendant No. 3 had no interest left in the property at the date of the attachment, which must necessarily mean that the transaction was not even a mortgage. Their Lordships have also given reason for not remanding the case and that reason is that it was not raised in the trial Court. But in my opinion their Lordships expressed their opinion in clear terms that on the evidence before the trial Court, the learned Judge was justified in coming to the conclusion that defendant No. 3 had no interest left in the suit properties at the date of the attachment.
3. The trial Court in this suit held that the decision of the Nasik Court and the High Court would not operate as res judicata in the present suit on the ground that this defence could not have been taken in the earlier suit as it was destructive of the case set up in that suit. The learned Assistant Judge, however, has held that the decision in suit No. 425 of 1935 and also in First Appeal No. 278 of 1937 would operate as res judicata, and I feel satisfied that the learned Assistant Judge was right in holding that the decision in the earlier suit operates as res judicata. It may be noted that the suit was not merely for a declaration that the plaintiff was the owner, but it was also for a declaration that defendant No. 3, i.e. the present plaintiff, had no interest in the property whatsoever. Now, if it once be held that there was no saleable interest of the defendant, then any contention that may be raised now which would be inconsistent with that decision must be held to have been raised and decided in the earlier suit. The real, test is that if the decree in the previous suit is inconsistent with the defence which ought to have been raised, that defence must be deemed to have been raised and finally decided and is barred by res judicata. Mr. Kotwal has referred me to a number of cases in which it has been held that though inconsistent pleas may be taken, it is not obligatory to take inconsistent pleas which would be destructive of each other. This proposition, may be generally true provided it satisfies the test which has been laid down, viz. that the contentions raised in the second suit must not be inconsistent with the decision already given in the earlier suit. The cases referred to by Mr. Kotwal can all be distiguished on this ground. In Mahomed Ibrahim v. Sheikh Hamja I.L.R. (1911) 35 Bom. 507: 13 Bom. L.R. 895 s.c. it has been held that 'where a person brings a redemption suit and fails, his second suit in ejectment against the same defendant is not barred by res judicata.' Here it may be seen that the decision in the redemption suit cannot be inconsistent with the claim made by the plaintiff that he is the owner. In the redemption suit, the mortgagor has only to prove the execution of the mortgage deed and the mortgagee is estopped from challenging the title of the mortgagor. So the question of title was never involved in the redemption suit but the question of title will be involved in a suit for ejectment. Therefore, the contention in the second suit is not inconsistent with the decisions in the first suit. Similarly in Dola Khetaji v. Balya Kanoo I.L.R. (1921) 46 Bom. 803 the facts were that the plaintiff sold the property in suit to the defendant on March 16, 1906. On August IS, 1906, the defendant executed a satehhat to the plaintiff agreeing to re-sell the property to him on receipt of Rs. 395 from him any time within 12 years. In 1911 the plaintiff filed a suit claiming to redeem the property on the ground that the document of March 16 was a mortgage transaction. The suit was dismissed. The plaintiff, thereupon, sued for specific performance of the satekhat. It was contended that the claim was res judicata inasmuch as the plaintiff might have sued in the suit of 1911 for specific performance of the satekhat. The Court held that the suit was not barred as the two suits were mutually inconsistent, and if the plaintiff failed in proving the mortgage, he still had a number of years within which he could have sued to get back the property on payment of the consideration mentioned in the satekhat. So, though the earlier suit was for redemption and though it was dismissed, the suit under the satekhat was not inconsistent with the decision in the mortgage suit. I, therefore, hold that the present suit is barred by res jttdicata in view of the decisions of the Nasik Court in suit No. 425 of 1935 and of the High Court in First Appeal No. 278 of 1937. In view of this finding on this issue, it is not necessary to consider the other issues.
4. The appeal, therefore, fails and is dismissed with costs.