(1) This is an appeal against the decree and judgment of the Court of the Subordinate Judge, Eluru, confirming that of the District Munsif, Eluru, in O. s. No. 303 of 1947, a suit filed by the respondent for partition and separate possession of his 1/2 share in the plasint schedule property.
(2) Krishnamacharyulu and Ramanujacharyulu were brothers. They jointnly owned the plaint schedule property. Krishnamacharyulu sold the said property to the plaintiff on 12-7-1939 representing that he was the full owner thereof. Ramanujacharyulu, in his turn, sold the same property to the defendant on 5-8-1939 representing that he was the full owner thereof. The plaintiff filed O. s. No. 174 of 1944 on the file of the Court of the District Munsif, Eluri, for evicting the defendant, who was the 6th defendant in that suit.
The District Munsif held that the property was the joint property of Krishnamacharyulu and Ramanujacharyulu and decreed the suit in respect of half the suit property. The defendant preferred an appeal to the District Court West Godavari, A. S. No. 413 of 1945. The suit was remanded for fresh disposal and sent to the District Munsif's Court, Narasapur. It was numbered as O. S. No. 282 of 1946.
That Court also found that the suit property was the joint property of the two brothers and the plaintiff must be deemed to have purcahsed only the equity of enforcing partition as against the co-owner in possession. The plaintiff was advised to file a separate suit for partition. With that observation, the suit was dismissed. Wtih that observations, the suit was dismissed. Thereafter the plaintiff filed O. S. No. 303 of 1947 for partitioin and separate possession of his half share.
The defendant, apart from raising the plea that the suit property was the absolute property of Ramanujacharyulu, pleaded that the plaintiff's earlier suit for the recovery of the entire property having been dismissed, he was barred by res judicata from filing the present suit for half of it. The learned District Munsil held that the decree in the previous suit constituted res judicata and the defendant could not in the present suit, reopen the question of title.
In the result the suit was decreed as prayed for. Or appeal, the learned Subordinate Judge expressed the same view on the question of res judicata and dismissed the appeal. Hence this Second Appeal.
(3) The only question in the Second Appeal is whether the Judgment in A. S. No. 282 of 1946 operates as res judicata against the defendant in the suit on the question of title. The learned Counsel for the appellant raised before me the following two points (i) the earlier suit, which was filed for the recovery of the entire property having been dismissed, the plasintiff cannot file the present suit for recovery of half of the properly, the subject-matter of the earlier suit, and (ii) though the defendant was given only half the costs of the suit on the basis of the finding that the plaintiff and defendant jointly owned the property in equal shares, the finding would not operate as res judicata.
(4) I shall take the second point first. Before adverting to the cases cited, it may be convenient to notice the finding given by the District Munsiff in the earlier suit. The learned District Munsif found that the plaintif's vedor and the defendant's vendor were entitled to the suit land in two equal shares at the time of the sales by them and tht the plaintiff's vendor had only joint possessioin of the suit land.
On that basis he held that the plaintiff had only a right to a half share in the suit land and joint possession of it and that he would not be entitled to exclusive possession of it and that he would not be clusive possession until his shasre was separated in a suit for partition. As the learned District Munsif was of the view that a suit in ejectment could not be converted into a suit for partition, he dismissed the suit with the observastion that his right was merely to file a separate suit for partition. He awarded only half the taxed costs to the defendant and give the following reason for doing so:
'I am awarding the 6th defendant only half the taxed costs in both the trial courts, for the reason that he too has taken the sale deed for the entiore suit land from defendants 3 to 5 in a speculative manner and knowing full well that the suit land is the joint property of the 3rd defendant and both plaintiff and 6th defendant have knowingly purcahsed the entire suit land from their respective vednors in a speculative manner and out of mutual ill-will.'
It is, therefore, apparent from the Judgment that the learned District Munsif recognised the joint rights of the plaintiff and the defendant, but dismissed the suit on the graund that it was not one for partition as it should be, but he gave only half the costs to the defendant as he found title only to half the property in his favour.
Both the plaintiff and the defendant could have preferred appears against that decree, the plaintiff in so far as he was not given a decree for partition and the defendant in so far as he was deprived of half costs in the suit. But Both parties were satisfied withe the decree and did not prefer any apeal against it. The only question under those circumstances is whether the finding that the plaintiff is entitled to half of the suit property would be res judicata, in the present suit.
It would be res judicata within the meaning of S. 11, Civil P. C., if the issue on the question of title was directly and subsequently in issue in the former suit and had been heard and finally decided by that court. Mr. Sankara Sastri, learned counsel for the appellant, contends that though the question of title was directly and substantially in issue, in the previous suiut, it was not finally decided against the defendant, as it is said that the defendant could not have preferred an appeal against that finding inasmcuh as the suit was dismissed in his favour.
In regard to the said contention, a number of decisions have been cited at the Bar. All of them need not be noticed. It would be enough if I consider the leading decisioin on the subject.
(5) The leading case on the subject is that of the Judicial Committee in -- 'Midnapur Zamindari Co. Ltd. v. Naresh Narayan Roy', AIR 1922 PC 241 (A). there the Zamindar filed a suit against his ltenant claiming possession of certain Chur Land. That suit was compromised and a fresh patta and Kabulyat fixing a yearly rent for a term of 8 years were executed. After the expiry of the term a fresh patta and Kabuliyat were to be given at a fair rate to be then settled. One of the terms of the compromise was that if he did not pay the fair rent as settled between them, the the Zamindar could evict him from possession.
Subsequently, the Zamindar sued the tenant for possession. The tenant pleaded that he had occupancy rights and that the suit was premature. The trial court held that there was no occupancy right and that the suit was premature. The High Coiurt affirmed the said Judgment. Therefore, the Zamindar brought another suit for possession of the land aftr giving the necessasry notice to terminancy the tenancy. The tenant again claimed occupancy rights. The judicial Commisisoner held, on a construction of the lease deed, tht he had no right of occupancy.
They also found that the finding on the question of occupancy rights in the earlier suit was not res judicata in the latter suit, for the tenant having succeeded on the preliminary point, he had no occasion to go further as to the finding against him. At page 243, the Judicial Committee observed:
'Their Lordships do not consider that this will be found on actual plea of res judicata for the defendants having succeeded on the other plea, had no occasion to go further as to the finding against them.'
This decision is, therefore, authority for the position that a finding against a defendant is not res judicata in a subsequent suit if the suit is dismissed against him in toto, for, in that even, the defendant had no opportunity to file an appeal questioning that finding.
That finding therefore, cannot be held to be a final decision. This proposition is accepted as sound by the learned counsel for the respondent also. But his contention is that a decree depriving the defendant of half the costs would make all the difference, for tht circumstance would have enabled him to prefer an appeal, if he had chosen to do so. Anticipating this objection, the learned counsel for the appellant attempted to joint out that in the case before the Judicial Committee also, the High Court on the earlier occasion did not give costs.
That fact is not clear from the judgment. But, it is sought to be inferred from the cryptic statement at page 242 of the report, which reads:
'Appeal was taken to the High Court and they in affirming the judgment said as follows after expressing the view that the action was premature. If the respondents (defendants) had been sastisfied with this Judgment, we would have been inclined to dismiss the appeal with costs, but notwithstanding the suggestion of the Court, the Government Pleader who appears for the tenants thought it advisable to lay before us a cross-appeal'.'
From this, it is argued that because a cross-appeal was filed, the appeal was dismissed without costs. The emphasise in the extract was not on costs, but on the dismissal of the appeal.
Anyhow, the argument that the appeal was dismissed without costs and therefore it was not res judicata was not raised before the Judicial Committee and I cannot extend the proposition laid down by the Judicial Committee to a case which was not placed before them.
(6) In 'Kelu Nambiar v. Chathu Nambiar', AIR 1919 Mad 212 (B), a Division Bench of the Madras High Court consisting of Ayling and Krishnan JJ., ruled that a finding against a party not necessary for the disposal of a suit and not embodied in the decree will not operate as res judicata where the decree in the suit is in favour of that party. The facts there were: The plaintiff, one Kelu Nambiar sought to recover as Karnavan of one Meethala Veeti Tavazhi certain lands and arrears of rent from the tenant in possession. The tenant denied the existence of any such tavazhi and pleaded that the lands belonged to me man tarwad of which one Chathu Nambiar was Karnavan.
He also pleaded tht he paid rent to the said Chathu Nambiar. Both the parties contended that the question whether the tavazhi existed as a separata entity was res judicata by reason of previous decision between the parties. O. S. No. 3 of 1895 was brought by Sankaran Nambiar, a junior member of the familky, to remove one Ambu Nambiar from the karnavanship for alleged misconduct and for recovery from the tarward certain properties. The plaintiff had asserted in that suit that Ambu Nambiar was the karnavan of the tavazhi.
The defendants who were allowed to appear in a representative chapactiy, denied the existence of the said tavazhi. The court held that such a tavazhi existed, but in spite of that finding, the suit so far as it prayed for the removal of the karnavan was dismissed and ambu Nambiar was not removed from the karnavanship of either the tarwad or the tavazhi; nor was the finding embodied in the decree. On these facts, it was held that the finding was not necessary for the disposal of the suit and, therefore, it couldnot be held to have the force of res judicata against the tarward.
This is also a case similar to that of the Privy, Council quoted above. The suit was dismissed in spite of the finding in favour of the tarwad. The tarward obviously could not preferred any apeal against that finding.
(7) So too, Wallar and Pandalai JJ., in -- 'Subbier v. Ramaswami', AIR 1932 Mad 541 (C), accepted and applied the said principle to the facts before them. The learned judge held that where a decree was in favour of the plaintiff, an adverse finding on an issue that in no way affects the decree, cannot be treated as res judicata in a subsequent litigation between the same parties which raises the same issue. At page 541 the learned Judges gave the following reason for their conclusion:
'Not only was there no necessity for the respondent to appeal, there was also nothing that he could appeal against, the decree being in his favour.'
The prinicple recognised and adopted by the aforesaid decisions can only apply to a case where a suit is dismissed or decree in toto without reference to a finding given against a party in whose favour the said decree is made, for in that case there is no final adjudication, as the party against whom that finding is given cannot prefer an appeal against that finding. The judicial Committee in -- AIR 1922 PC 241 (A), clearly brought out that distinction.
(8) In - 'Kotayya v. Subbayya', AIR 1937 Mad 114 (D). Venkataramana Rao J., has discussed this aspect of the question at some length with reference to the case law on the subject. There a landlord instituted a suit against R's tenant for ejectment and for recovery of possession. The tenant denied the lease and the title of the landlord and claimed adverse possession. In the previous litigation between them, the Court found in favour of the landlord as regards the lease, title and adverse possession, but dismissed the suit and appeal therefrom on the ground that the ground that the landlord failed to serve a notice on the tenant to quit, but disallowed costs of defendant.
The tenant's appeal as to costs was also dismissed as be set up false pleas. The learned Judge held that the tenant by his appeal invited the appellate court to give decision on the question of title and of the lease and that the finding as regards title, lease and adverse possession and the order relating to costs were related to each other as cause and effect and hence the finding in the previous suits operated as res judicata in the subsequent suit by the landlord against the tenant for ejectment and for recovery of possession.
At page 116, the learned Judge after referring to the decisions of the Judicial Committee, made the following observations :
'But in both these cases, it will be seen that there was a decision in favour of the defendant and against the plaintiff who was entitled to prefer an appeal. In this case, though the ultimate decision of the suit was in favour of the defendant, there was a decree disallowing costs to the defendant. The defendant chose to give a decision on the question of title and of the lease and the Appellate Court did not go into them and gave findings.
It seems to me that these fidings will be resjudicata against the defendant and would clearly come within the principle of the decision in -- AIR 1922 PC 241 (A).'
(9) The learned counsel contends that case is distinguishable from the case on hand as there the defendant preferred an appeal against the order disallowing costs and questioned the correctness of the findings of the first court. The appellate court confirmed the finding. The fact that the defendant against whom a finding was given, though the suit was dismissed against him preferred an appeal, should not make any difference if the finding of the first court did not operate as 'res judicata'.
The dismissed of the appeal only left the parties in the same position where they were before the appeal was filed. The principle behind the decision, therefore, is that there was an appealable decree even aginst the defendant in so far as the first court dis-allowed the costs against the defendant. When the decree disallowed costs against the defendant, on the basis of a finding against him, it will be a final adjudication to that extent as he can in law prefer an appeal against that part of the decree. That there is no distinction between the two classes of cases is also made out clear by the learned Judge when he states:
'Here there was an order of the first court disallowing costs against which he did prefer an appeal. There was also the decree of the appellate court giving costs to the plaintiff against the defendant and the defendant could have preferred an appeal against the said decree.'
(10) That statement also clearly implies that the appellate decree was also appealable and, therefore, it was a final adjudication between the parties.
(11) The same view was expressed by another Division Bench of the Madras High Court, Ayling and Odgers JJ., in -- 'Veeraswamy Mudali v. Palamiappan, AIR 1924 Mad 628 (E). In that case also the suit was dismissed on the ground that there was no notice to quit. But there was a finding against the defendant in regard to the question of occupancy right and the plaintiff was awarded costs. The defendant preferred an appeal as to costs. The District Judge confirmed the Judgment of the first court, but directed the defendant to bear his own costs. Odgers J., in holding that the finding on the question of occupancy rights operated as 'res judicata' in a subsequent suit observed :
'Moreover the defendants might have appealed against the decree in so far as costs were awarded against them which award was expressly made on the ground that the finding as to title was against them. This is as much a part of the decree as anything else'.
In -- 'Venkatachalla Padayachi v. Velayudha Padayachi', AIR 1935 Mad 701 (F), the Officiating Chief Justice explained the scope of 'Veeraswamy Mudali v. Palaniappan (E)', in the following words :
'The distinction is important, for the principle of the decision in 'Veeraswamy Mudali v. Palaniappan (E)', is that the defendant could have attacked the adverse finding by filing an appeal against the Order as to costs. But in this case that requisite is wanting, the adverse finding and the Order regarding the costs not being related to each other as cause and effect.'
From the aforesaid discussion of the case law, the following principle emerges. Though a suit is dismissed the adverse finding against the defendant would be 'res judicata' in a subsequent suit between the same parties, if on the basis of that finding, costs in whole or in part were disallowed to the plaintiff or awarded to the defendant, (sic) for, in such a case, there is a decree against the defendant and it becomes final unless he prefers an appeal against the same.
In the present case, the finding that the defendant was entitled to an equal right in the suit property was the basis for disallowing half the costs to the defendant. The defendant could have preferred an appeal against that part of the decree. The finding, therefore, certainly operates as 'res judicata' in the present case.
(12) Now coming to the first question, the argument of the learned counsel is that in the earlier suit, the plaintiff claimed recovery of the entire property and that having been dismissed in toto, he could not file a suit for recovering half of it. To illustrate, if A files a suit for recovering of 10 acres and that is dismissed, he cannot thereafter file a suit for recovery of five or more of those 10 acres.
In the same way, the argument proceeds that whatever might be the ground on which the plaintiff was non-suited in regard to his entire claim, he cannot file another suit for recovery of the suit property, or part of it. In support of this contention, reliance is placed upon the judgment of Spencer, Officiating C. J.; in -- 'Mahomed Esuf Rowther v. Abdul Khader', AIR 1924 Mad 711 (G). There the plaintiff were the widow and children of one Sheick Mahomed Rowther.
Sheick Mahomed Rowther had one brother, who was the first defendant, and four sisters. Sheick Mahomed brought a suit O. S. No. 15 of 1905 to recover the suit lands from the 1st defendant on a plea of trespass, in which he alleged that the properties were in plaintiff's possesion. Another suit O. S. No. 38 of 1915 was brought by the daughters of the Isabibi Ammal, one of the sisters of Sheick Mahomed and the first defendant. That suit was dismissed on a finding that the propert was the exclusive property of Sheick Mahomed.
The result of the said suit was to negative the right of the sister to any share in the property and to enahance the shares of Sheick Mahomed and the first defendant. In the third suit, the subject-matter of the appeal in that case, the courts below gave a preliminary decree for partition. The learned Judge held that, as regards the plaintiffs' title to sole possession of the property, the decision in O. S. No. 15 of 1905 was 'res judicata' as between them and the defendant. At page 712, the learned Judge observes :
'The present suit, if it be regarded as a suit to obtain possession against a trespasser, is barred by reason of the prior suit O. S. No. 15 of 1905 upon the same title. If it is to be alleged that in the prior litigation the plaintiff asked for too much, and therefore his suit was dismissed and his representatives are now at least entitled to 6/8 or some other smaller of the property, then they are equally barred because Sheick Mahomed should have pleaded in that suit, that if he was not entitled to a decree for the whole property, he should at least be given a decree for his 6/8 share.'
It will be seen from the aforesaid facts that, in the first suit the plaintiff's predecessor Mahomed Rowther claimed the entire property on the ground that he was the owner of the property.
No question was raised in that case, either by the plaintiff or the defendant, that the defendant was entitled to half the property and was in joint possession with the defendant. A party who filed a suit for the entire property cannot, when his title is denied obviously filed a suit for a portion of it, and the learned Judge did not lay down anything more then that self-evident proposition. Indeed. he makes it clear at an earlier stage of the Judgment that the suit did not purport to be a suit for partition of property between co-owners.
But that principle cannot apply to a case where the plaintiff claimed the entire property, the defendant set up title to half property in himself and the court recognised that title and deprived the defendant of half the costs. In O. S. N. 282 of 1946 the learned District Munsif held that the vendor had right only to a half share in the suit land and joint possession of it. On that finding he rejected the claim for exclusive possession, and in view of that finding he disallowed defendant's half costs.
The effect and substance of that judgment was that joint title and possession were declared and the suit so far as it asked for exclusive possession was dismissed. As I have already stated that finding was the basis of the decree for costs and the defendant could also have preferred an appeal, if he had chosen to do so. The present suit was filed for partition and for separate possession on the basis that they were co-owners. It cannot, therefore, be held in this case that previous suit was dismissed in toto. The cause of action for the present suit is different from that in the earlier suit, for the present suit is based upon the joint rights declared in the earlier suit. There is, therefore, no point in this contention either.
(13) In the results, the appeal fails and is dismissed with costs. No leave.
(14) Appeal dimissed.