Sharfuddin Ahmed, J.
1. This revision petition is directed against the order of the District Judge, Warangal, dared 3rd August, 1961 made in Appeal Suit No. 32 of 1900, whereby the judgment and decree of the Principal Munsiff, Warangal made in O. S. No. 87 of 1958 dated 12th August. 1960, has been confirmed.
2. The petitioner herein instituted a suit, O. S. No. 87 of 1958 on the file of the Principal Munsiff, Warangal, for the recovery of a sum of Rs. 871-7-0 alleging that the husband of the respondent had entered into a sale agreement with him in respect of it certain piece of land, but instead of delivering possession of the same he had filed a suit for declaration of permanent injunction against him in O. S. No. 50/1 of 1956 and thereby prevented him from taking possession of the suit land. He was, therefore entitled to recover the amount advanced by him to the husband of the respondent Inwards the sale price. The defendant-respondent contested the suit and inter alia pleaded the suit was barred by the principle of res judicata as in the, earlier suit O. S. No. 50/1 of 1956, the matter had been heard and finally decided. The Principal Munsif Magistrate. Warangal on a consideration of the arguments advanced gave a finding in favour of the respondent holding that the suit was barred by the principle of res judicata. On appeal, the District Judge, Warangal upheld the said finding. The revision is directed against this order.
3. The learned counsel for the petitioner contends that though there was a specific issue in O. S. No. 50/1 ol 1956 in regard to the sale agreement that question did not require a decision tor the disposal of the said suit. The finding had been merely given to save a remand and, therefore, the principle of res judicata was not attracted.
4. On a perusal of the judgment in O. S. No. 50/1 of 1956 it appeals that issue No. 3 related to the sale of the land and there was reference to the arbitration. It has been settled in the following words:-
'Whether the plaintiff agreed to sell the suit land to the defendant and whether any arbitration is going on in that respect. It so, is it in accordance with the provisions ot Arbitration Act? Whether the agreement for sale ol the suit land and arbitration have any bearing on this suit?'
5. It is to be noted that in the said suit, which was filed by the husband of the respondent against the petitioner herein for declaration of his right of ownership and permanent injunction the plea set up by the petitioner herein was that the said land had been agreed to be sold by the plaintiff in the said suit for a sum of Rs. 1360 and in pursuance of the same certain amountshad been advanced to the plaintiff. It was also mentioned that the matter had been referred to arbitration in regard to the dispute that arose between the parties. In that connection, the above mentioned issue was framed. The learned Munsiff Magistrate Warangal considered the evidence in support of this issue and gave his finding as under:-
'Under those shortcomings the third issue is worth to be decided against the contentions of the defendant in toto. This is decided against the defendant.'
He has referred to the evidence adduced by the defendant to substantiate his case for agreement. A copy of the Ankada, marked Ex. D. 1., has been produced and some other evidence in support of the sale agreement has also been let in. The learned District Munsiff has discarded this evidence on various grounds. In the circumstances, it could not be said that there is no finding aginst the petitioner in respect of the said issue. But, the question is whether a finding on that issue was necessary for the disposal of the said suit (O. S. No. 50/1 of 1956).
6. As slated earlier, the said suit was filed for a declaration of right in respect of a strip of land measuring 20 guntas and for perpetual injunction against the petitioner from interfering with the peaceful possession of the owner thereof. In the written statement it was pleaded that the plaintiff in the said suit was no more the owner or possessor of the suit land as he had agreed to sell the same for consideration of Rs. 1360, but during the course of arguments it was made clear that the defendant was not in possession of the suit land. That particular portion has been referred to at page 5 of the judgment as under'.
'During the course of the final argument as well the learned Advocate of the defendant made a declaration that on the recommendation of the elders who look part in the arbitration the defendant made no attempt to keep the land in his possession till the arbitrators gave their award.'
It is on this admission that the court came to the conclusion that the first issue in regard to the ownership and occupation of the suit land has to be answered in favour of the plaintiff in the suit. Therefore, the contention of the learned counsel for the petitioner that no specific finding was necessary in regard to issue No. 3 for the disposal of the said suit appears to be acceptable, for the possession of the plaintiff in O. S. No. 50/1 of 1956 was not contested. The suit could have been disposed of merely on the admission of the party without giving a finding whether there was a sale agreement and if so, whether any consideration had passed between the parties in respect of the said sale agreement. Further, it is to be noted that Issue No. 3 as framed in the said suit does not specifically deal with the payment of consideration and the execution of the Ankada, Ex. D-1 filed in the suit. Emphasis seems to be more on the question whether there has been a reference to the arbitration in connection with the agreement of sale. Having regard to it, the second suit filed by the petitioner for the return of the consideration on the basis of the Ankada stated to have been executed by the husband of the respondent, proceeds altogether on a different footing.
7. The learned counsel for the petitioner has relied on a decision in Pitchireddy v. Bharatasastri, AIR 1924 Mad 893 wherein it has been observed that;
'When a finding is recorded only to avoid a possible remand, and it is not the basis of the judgment, the point is not finally determined and is not res judicata.'
The case is no doubt distinguishable on facts inasmuch as it was made clear by the District Munsif himself that he had given a finding to avoid a remand but the principle enunciated therein is that the decision of the question is not the basis of the judgment and the determination thereof will not bar a fresh suit. Similar view seems to have taken in the case of Gopala v. Veeraswami, AIR 1935 Mad 551 holding that:
'A finding on an issue, which was not necessary for the disposal of a suit, cannot be considered to be res judicata when the point involved in in that finding arises for decision in a subsequent suit.'
8. Having regard to the facts of the ease, as observed in the preceding paras, I think the decision on issue No. 3 in the previous suit cannot be held to be a bar for the determination of the questions involved in the second suit. In that view, I allow the revision petition, setting aside the order of the lower court. Costs will abide the result.