1. The plaintiffs-respondents claimed a declaration against the defendant-appellant that they were permanent tenants in the khoti village in suit. The defendant appellant alleged that they wore annual tenants and raised the plea of res judicata by reason of the decree in civil suit No. 478 of 1921 and appeal No. 280 of 1922. Both the lower Courts decreed the claim. The defendant appeals.
2. The two questions in appeal are, firstly, whether the present suit is barred by the decision in the previous suit, and, secondly, whether the plaintiffs-respondents have proved that they are permanent tenants.
3. On the first point the facts and the causes of the former litigation are pertinent. The landlord, the present defendant-appellant was the plaintiff. He sued the present plaintiffs-respondents to recover possession with mesne profits of the lands now in suit claiming that they were his own lands and the defendants were annual tenants. He relied on a rent-note of 1913. The tenants, present plaintiffs-respondents, contended that the rent-note was forged and denied that they were annual tenants and alleged that they were permanent tenants on a rental of ten maunds a year to the khot. The trial Court in that suit found that the landlord had proved that they wore annual tenants and was entitled to possession and decreed the landlord's claim. The tenants appealed and then gave an application to the effect that they had not been able to adduce all their evidence on the question of permanent tenancy and that they wished to leave that question open and to have it decided in it subsequent suit to be filed by them and subject to such permission they wore willing that the appeal should be dismissed. Upon this the learned Subordinate Judge in appeal, Mr. M.H. Vakil, passed the following order:--'The permission asked for is granted, The appeal is dismissed with costs.'
4. It is argued for the appellant that the tenants being defendants in that suit no permission from the Court was necessary or could be granted, and as the appeal was dismissed and possession given, the only issue in the case, viz., whether the tenants wore permanent tenants and entitled to resist possession or whether they were annual tenants liable to ejectment, must be taken to have been decided in favour of the landlord, and that question, therefore, is res judicata. It is argued for the tenants-respondents that whether the order of the First Class Subordinate Judge in appeal was right or wrong or with or without jurisdiction, the tenants did not want the question of permanent or annual tenancy to be decided in appeal, The lower appellate Court agreed not to decide it. The decree was, so to speak, fey agreement, and as in fact rightly or wrongly there was no actual decision, that judgment cannot be res judicata. This is not the only case in which such judgments from the learned Subordinate Judge, Mr. M.JET. Vakil, have come up before this Court. Undoubtedly, there must be a decision before it can be res judicata. Equally, if a case which could have been decided on one point has actually been decided on another, there is no res judicata on the former point which is not actually decided. The difficulty in the present case arises from the fact that there was no other point before the Court. Whether the landlord could be awarded possession as he claimed or whether he could be resisted and the tenants could be maintained in possession as they claimed, depended purely and solely upon the question whether the tenants were held to be annual tenants or permanent tenants. There was no other issue in the case and therefore the appeal could only be dismissed if the tenants were held to be annual tenants. This was not the case of a decree by compromise or by agreement. The tenants in the case were defendants and were not plaintiffs to whom Order XXIII, Rule 1, could apply.
5. Order XII, Rule 6, was referred to for the tenants. But that rule refers to admissions and judgments on admissions and has no application to the present question. Had the former suit been a suit for rent and not in ejectment and capable of decision without deciding the question of permanent or annual tenancy and being so decided, that judgment could not be res judicata: Surendra Nath v. Kumar Kamakhya Narain Singh (1929) 32 Bom. L.R. 515. But, as pointed out above, that was not the case, and under the circumstances it has been held by this Court that the mere fact that the Court refers the party in its judgment to a fresh suit or gives liberty to bring a fresh suit is not sufficient to take the case out of the bar of res judicata: Tarachand v. Bai Mansli (1904) 6 Bom. L.R. 594. In that case the plaintiff who sued on title could have sued in the alternative as mortgagee but did not do so and asked for an amendment at a late stage and was refused but the Court in its judgment referred him to a fresh suit. Such a permission in a judgment was held to be no bar to the application of the doctrine of res judicata when he filed subsequently a suit on his mortgage. Similarly, reversioners who ought to have relied upon custom but failed to do so and whose amendment for an addition was refused, filed a second suit relying upon custom; it was held that though the trial Court while refusing the amendment gave them liberty to file a fresh suit for possession, the second suit was barred by res judicata: Fateh Singh v. Jagannath Bakhsh Singh (1924) L.R. 52 IndAp 100, 27 Bom. L.R. 725. In this view it appears to me that here the permission which the defendants-tenants sought could not be given to reserve the only question in suit. It was a permission which they could not apply on the most elementary principles of judicial decision and which the Court could not give, and the permission purporting to be granted by the learned Subordinate Judge in appeal cannot save the present suit from being res judicata. They admitted their failure to adduce evidence in that suit to prove permanent tenancy, They could not ask and the Subordinate Judge had no power to give them permission to raise the same question in a second suit with liberty to adduce fresh evidence.
6. In this view there is no need to enter into the second point. Nevertheless it appears to me that on this point too the finding of the lower Courts is incorrect. The history of the lands appear to be as follows. The earliest date to which possession has been traced is about 1864 when it was cultivated by Bhaga Katkar. He subsequently mortgaged it to the father of the present respondents. The mortgagee brought a suit and obtained a decree, and in execution purchased the right, title and interest of the Katkars. The Katkars have never been entered as permanent tenants. The lower appellate Court has held that the appellant's permitting the mortgage and the sale leads to an inference of permanent tenancy, That inference does not, in my opinion, follow. Under the law as it stood under the Khoti Settlement Act I of 1880 there was no prohibition of transfer of ordinary tenancy and it is doubtful whether the appellant could have resisted the sale through Court, whatever his rights might have been as against a sale by the Katkars direct. That conduct, therefore, does not prevent permanent tenancy. In regard to Section 83 of the Bombay Land Revenue Code it is difficult to say that in the case of cultivation in 1863 the antiquity is so great as to make the commencement of the tenancy difficult and that by reason of the antiquity of the tenancy no satisfactory evidence of its commencement is forthcoming. In this view, therefore, the respondents are not entitled to a declaration of permanent tenancy by reason of Section 83 of the Bombay Land Revenue Code. To this must be added the fact of the rent-note of 1913 produced in the previous litigation which was accepted by the trial Court in that litigation as genuine and which has been accepted in this Court, even though it held rightly that an isolated rent-note is not necessarily inconsistent with permanent tenancy.
7. For these reasons I am of opinion that the permanent tenancy is not proved by the plaintiffs respondents and that the suit is barred by res judicata. The appeal is. therefore, allowed, the decrees of the lower Courts set aside and the plaintiffs' suit dismissed with costs throughout.