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Raghu Nath Vs. Shib Charan Lal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All174
AppellantRaghu Nath
RespondentShib Charan Lal
Excerpt:
civil procedure code, section 13 - res judicata--finding in judgment not embodied in the decree and not essential to the making of the decree as framed--act no i of 1877 (specific relief act), section 42. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain.....john edge, kt., c.j. and banerji, j.1. raghu nath, who is the respondent to this appeal, brought in the court of the munsif of east budaun the suit in which this appeal has arisen and made cheda lal, ramji lal, sundar lal, and shib charan lal, defendants to the suit. shib charan lal is the appellant here.2. in his plaint raghu nath alleged that a certain pacca house had been the property of one mansukh, deceased, that mansukh died without male issue and left two daughters, viz., muaammat kishna and musammat biba, him surviving, who, having obtained possession of the house for their interest as the daughters of a deceased sonless hindu, died. raghu nath further alleged that he was the son of musammat biba, who died in 1890, and that cheda lal, ramji lal and sundar lal were the sons of.....
Judgment:

John Edge, Kt., C.J. and Banerji, J.

1. Raghu Nath, who is the respondent to this appeal, brought in the Court of the Munsif of East Budaun the suit in which this appeal has arisen and made Cheda Lal, Ramji Lal, Sundar Lal, and Shib Charan Lal, defendants to the suit. Shib Charan Lal is the appellant here.

2. In his plaint Raghu Nath alleged that a certain pacca house had been the property of one Mansukh, deceased, that Mansukh died without male issue and left two daughters, viz., Muaammat Kishna and Musammat Biba, him surviving, who, having obtained possession of the house for their interest as the daughters of a deceased sonless Hindu, died. Raghu Nath further alleged that he was the son of Musammat Biba, who died in 1890, and that Cheda Lal, Ramji Lal and Sundar Lal were the sons of Musammat Kishna, and that on the death of Musammat Biba, who was alleged by Raghu Nath to have survived her sister Musammat Kishna, he, Raghu Nath, and the defendants Cheda Lal, Ramji Lal and Sundar Lal as the heirs of Mansukh became entitled to the house, each to the extent of one-fourth.

3. It was further alleged in the plaint that Musammat Kishna, jointly with the defendants Cheda Lal and Ramji Lal and in collusion with them and without necessity, on the 19th of September 1879, by deed mortgaged the house to the defendant Shib Charan Lal, that Shib Charan Lal subsequently on appeal in suit brought by him in 1891 against Cheda Lal, Ramji Lal and Sundar Lal upon the mortgage of the 19th of September 1879, obtained a decree for sale as against the defendants, Cheda Lal and Ramji Lal, of their interests in the house, which by that decree was declared to be the two-thirds interest, and that Shib Charan Lal's suit for sale as against Sundar Lal was dismissed.

4. It was alleged in the plaint, as was the fact, that the plaintiff Raghu Nath instituted in 1893 in the Court of the Munsif of East Budaun a suit against these defendants Shib Charan Lal, Cheda Lal, Ramji Lal and Sundar Lal for a declaration that he was one of the four heirs of Mansukh and as such was entitled to a one-fourth share in the house, and that the Munsif, finding that the plaintiff Raghu Nath was not in possession of the house, dismissed the suit.

5. It was also alleged in the plaint that the defendant Shib Charan Lal in 1893 put his decree for sale in execution.

6. The plaint concluded with following prayer: 'The plaintiff prays judgment that by declaring that the plaintiff is the owner of, and entitled to, one-fourth of the house bounded as below and situate in Budaun, mohalla Syedpura, he 'may be put in possession of the aforesaid one-fourth share jointly with the defendants Nos. 1, 2 and 3 (Cheda Lal, Ramji Lal and Sundar Lal) by protecting the same from the demand of the decree of the appellate Court, No. 812 of 1891 (the decree for sale) and the decree of the original Court, No. 516 of 1891.'

7. The defendants Cheda Lal, Ramji Lal and Sundar Lal did not defend this suit. The defendant Shib Charan Lal in his written statement pleaded, inter alia, that this suit was barred by Section 43 of Act XIV of 1882 and that the mother of the plaintiff Raghu Nath was one Musammat Gaura, and was not Musammat Biba, and that neither Musammat Gaura nor Musammat Biba was a daughter of Mansukh.

8. In the present plaintiff's suit of 1893 he alleged, and the defendant Shib Charan Lal denied, that the plaintiff Raghu Nath was the son of a Musammat Biba and that Musammat Biba was one of two daughters of Mansukh and that the plaintiff Raghu Nath was, as such son of Musammat Biba, entitled to a one-fourth share in the house in question. In that suit the Munsif in his judgment found that issue as to title in favor of Raghu Nath, but, as Raghu Nath had not claimed any decree for possession, the Munsif dismissed the suit under the proviso to Section 42 of the Specific Relief Act, 1877, (Act No. I of 1877), on a finding that the plaintiff was not in possession, jointly or otherwise, of the house in question.

9. In the present suit the same Munsif held that by reason of his finding as to title in the previous suit the question of the title of the plaintiff Raghu Nath as one of the four heirs of Mansukh was res judicata under Section 13 of Act No. XIV of 1882, and also found as a fact that, apart from the question of res judicata, the plaintiff Raghu Nath had in this suit proved his title as one of the four heirs of Mansukh; and finding the other issues in favor of the plaintiff' decreed his claim. As to the plea that this suit was barred by Section 43 of Act No, XIV of 1882, the Munsif relied upon and followed the decision of this Court in Mohan Lal v. Bilaso I.L.R. 4 All. 512. From that decree the defendant Shib Charan Lal appealed td the Court of the District Judge. In his grounds of appeal he questioned the correctness of the findings of fact of the Munsif. His fifth ground of appeal was: 'That Section 13, Civil Procedure Code, was not at all applicable, because in the former case the plaintiff's claim was dismissed. An appeal is preferred against a decree and not on the ground of reasons. When that decision has not the effect of res judicata (Section 13) against the parties, it does not stand in bar.' In that appeal the District Judge of Shahjahanpur held that the question of the title of the plaintiff Raghu Nath was not res judicata, and that Section 13 of Act No. XIV of 1882 did not apply; and, finding as a fact that the plaintiff' had not proved his title as an heir of Mansukh, he set aside the decree of the Munsif and dismissed the suit. From that decree the plaintiff appealed to this Court. His appeal was heard by a single Judge, who, holding that the question of title was, by reason of the finding as to title of the Munsif in the previous suit, res judicata under Section 13 of Act No. XIV of 1882, reversed the decree of the District Judge, and made, under Section 562 of Act No. XIV of 1882, an order of remand. From that order of remand this appeal has been brought under Section 10 of the Letters Patent of this Court by the defendant Shib Charan Lal.

10. The only question argued before us was the question of res judicata. Mr. Abdul Majid for the defendant Shib Char an Lal relied upon the proviso to Section 42 of the Specific Relief Act, 1877, (Act No. I of 1877) and contended that(the finding as to title in the previous suit was immaterial to the decision of that suit; that the decree in that suit having been entirely in favor of Shib Charatt Lal, and an appeal lying from a decree and not from a finding in a judgment, not embodied in the decree, he could at have questioned that finding by an appeal, and that a finding which could not be questioned by appeal could not in a subsequent suit operate as res judicata. Mr. Abdul Majid cited the following cases. Umrao Lal v. Behari Singh I.L.R. 3 All. 297, Ram Sewak Singh v. Nakshed Singh I.L.R. 4 Ali. 261, Putali Meheti v. Tulia I.L.R. 3 Bom. 223, Anusuyabai v. Sakharam Pandurang I.L.R. 7 Bom. 464, Ghela Ichharam Sankalchand Jetha I.L.R. 18 Bom. 597, Devarakonda Narasamma v. Devara-konda Kanaya I.L.R. 4 Mad. 134, Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee I.L.R. 13 Cal. 17, Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. 18 Cal. 647, Rajah Run Bahadoor Singh v. Mussumut Lochoo Koer L.B. 12 I.A 23 : S.C. I.L.R. 11 Cal. 301, and Narain Das v. Faiz Shah 24 Pan. Rec. 551.

11. Mr. Viddya Charan Singh, for the plaintiff-respondent Raghu Nath, contended that the finding as to title was a material finding, and even if not material to the decision of the previous suit, the issue as to title was tried between the parties, and, the Court having expressed an opinion on it, the matter became res judicata, whether an appeal from the decree in the previous suit could or could not have been brought by Shib Charan Lal; that Shib Char an Lal had an appeal against the decree in the previous suit, as that decree was defective by reason of that finding as to title not having been embodied in the decree, and, even if no appeal lay on the part of Shib Charan Lal from that decree as it stood, he could, under Section 206 of Act No. XIV of 1882, have got the Court to amend the decree so as to bring it into conformity with the judgment by embodying that finding in it, and could then have appealed from the decree as amended. He cited the following cases: Krishna Behari Roy v. Brojeswari Chowdranee L.R. 2 I.A. 283 : S.C. 25 W.R. C.R. 1, Shaikh Enaetoollah v. Shaikh Ameer Buksh 25 W.R. C.R. 225, Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319, Ram Gholam v. Sheotahal I.L.R. 1 All. 266, Man Singh v. Narayan Das I.L.B. 1 All. 480, Lack-man Singh v. Mohan I.L.B. 2 All. 497, Mohan Lal v. Ram Dial I.L.R. 2 All. 843, Jamaitunnissa v. Lutfunnissa I.L.R. 7 All. 606, and the Duchess of Kingston's case 2 Smith L.C. 9th Ed. 812. He also referred to Hukm Chand's Treatise on the law of res judicata, paragraph 60, page 131.

12. It was vigorously contended by Mr. Viddya Charan Singh before us that Krishna Behari Roy v. Brojeswari Chowdranee L.R. 2 I.A. 283 : S.C. 25 W.R. C.R. 1, Shaikh Enaetoollah v. Shaikh Ameer Buksh 25 W.R. C.R. 225, Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319, and the judgment of Mahmood, J., in Jamaitunnissa v. Lutfunnissa I.L.B. 7 All. 606, were authorities for the proposition that a finding in a judgment which is not embodied in the decree made upon that judgment operates as between the. parties as res judicata if the Court which expressed such finding in its judgment was competent to try the subsequent suit.

13. That proposition is not in our opinion supported by the decision of their Lordships of the Privy Council in Krishna Behari Roy v. Brojeswari Chowdranee. In that case Bunwari Lall had brought a suit to set aside certain patni leases granted to one of the defendants by the widow of one Goursoonder Roy, to whom Bunwari Lall alleged that he had been adopted by the widow as a son, Krishna Bebari Roy intervened in the suit; alleging that be and not Bunwari Lall was the heir of Goursoonder Roy. One of the defences set up was that Bunwari Lall bad not been validly adopted. The Principal Sudder Ameen found that Bunwari Lall had been validly adapted, but dismissed the suit on the finding that the patni leases could not be set aside. Krishna Bdhari Roy appealed to the Civil Judge, who, affirming the decision of the Principal Sudder Ameen, dismissed the appeal. From that decree of the Civil Judge Krishna Behari Roy, appealed to the High Court, at Calcutta. According to the judgment of their Lordships of the Privy Council, the High Court 'after fully hearing the case upon the issue of adoption, affirmed the decisions of the Courts below. There exists therefore a final and complete judgment upon the issue raised either at the instance of Krishna Behari Roy, or which he adopted, on the very question which he seeks again to raise in this suit;' and their Lordships held that Krishna Behari Roy was precluded by the principle of res judicata from questioning the validity of the adoption of Bunwari Lall in the subsequent suit which was before them in appeal. Krishna Behari Roy had intervened, not to support the suit of Bunwari Lall to have the patni leases set aside, but to defeat that suit on the plea that Bunwari Lall had be title to the property, and consequently could not maintain the suit., The patnidar had hot appealed from the decree of the Principal Sudder Ameen, and the decree of the High Court dismissing Krishna Behari Roy's appeal was made on the ground that Bunwari Lall had been validly adopted, and that was the finding of the High Court to which effect was given by its decree dismissing Krishna Behari Roy's appeal. It accordingly seems to us that it was only by reason of the findings as to the validity of Bunwari Lall's adoption having been given effect to in the decree of the High Court that their Lordships held that finding to be res judicata on the question of adoption.

14. The contention of Mr. Viddya Charan Singh to which we are referring, received support from the fact that Mabkby and Romesh Chunder Mittee, JJ., in Shaikh Enaetoollah v. Shaikh Ameer Buksh 25 W.R., C.R. 225, and Noreis, J., in Niamut Khan v. Phadu Buldia I.L.B. 6 Cal. 319, obviously, and apparently the other members of the Full Bench in the latter case, assumed, incorrectly in our opinion, that the decision of their Lordships of the Privy Council in Krishna Behari Roy v. Brojeswari Chowdranee L.R. 21. A. 283 : S.C. 25 W.R. C.R. 1, was solely based upon the finding of the Principal Sudder Ameen. Markby, J., at page 226 of 25 W.R. C.R. said: 'So in the case reported in 25 Weekly Reporter, p. 1, the decree in the previous suit, the finding in which was relied on was not before the Privy Council, nor have we been able to examine it, as it was not a decree of this Court, but we may with safety say that the finding relied on was not in the decree, for the suit was dismissed.' Norris, J., at page 324 of I.L.R. 6 Cal., referring to an omission from the decree of a Munsif of his finding that a tenure was liable to enhancement, which finding was relied upon as operating as res judicata, said: 'The omission of this finding in the decree is not material, because, as pointed out by Mr. Justice Mabkby in the case of Shaikh Enaetoollah v. Shaikh Ameer Buksh, their Lordships when they delivered their judgment in the case of Soorjomonee Dayee, had not the decree before them, and neither in that case, nor in another very similar case, Krishna Behari Roy v. Bunwari Lall Roy, did they think it necessary to have the decree before them. As a matter of fact in neither case was the finding relied on embodied in the decree.

15. In Shaikh Enaetoollah v. Shaikh Ameer Buksh 25 W.R. C.R. 225, the question common to the earlier suit and to that suit was whether the tenure of the tenant was, one which allowed of, or precluded, an enhancement of the rent by the landlord. In the earlier suit the Munsif had found that the 'tenure was not protected from enhancement, but, finding that the grounds upon which enhancement was claimed were not established, gavo a decree for rent at the old rate. In that case Markby and Romesh Chunder Mitter, JJ. held that the finding in the earlier suit on the question of title, whether or not it was contained in the decree, might in the subsequent suit, which was then before I them in appeal, be relied on as binding between the parties on the question as to whether the tenure was one which allowed of the rent being enhanced. Markby and Romesh Chunder Mitter, JJ., apparently came to that conclusion partly on the view which they entertained as to the basis upon which their Lordships of the Privy Council had decided the question of res judicata in Krishna Behari Roy v. Brojeswari Chotvdranee and which they expressed in the passage which we have already quoted from their judgment in Shaikh Enaetoollah's case, and partly from the view which they entertained as to the basis of the judgment of their Lordships in Soorjomonee Dayee v. Suddanund Mohapatter L.R. I.A. Supp. Vol. 212 : S.C. 12 B.L.R. 304, and 20 W.R. 377. As to that case they said: 'In a case reported in 20 Weekly Reporter 377, certain declarations of right contained in a judgment of this Court delivered in a previous suit were held by the Privy Council to be conclusive, this Court being competent to make them. The decree in that case was not before the Privy Council; it does not appear that the Privy Council thought it necessary; and in fact the decree, which is in the record of this Court and which we have examined, contains none of the declarations relied on by the Privy Council; it is simply a decree for costs.' The case to which their Lordships of the Privy Council referred was Suddanund Mohapatter v. Bonomallee 1 Marshall, 317 : S.C. 2 Hays' Reports, 205. According to the report of the judgment of the High Court in that case, the High Court made in its judgment the declarations relied upon by their Lordships of the Privy Council in the case before them. It does not appear that any one suggested to their Lordships or informed them that those declarations in the judgment of the High Court had been omitted from its decree, and it may be presumed that their Lordships in deciding that case assumed that the declarations made by the High Court in its judgment had been embodied in its decree. Consequently we cannot regard the judgment of their Lordships in Soorjomonee Dayee v. Suddanund Mohapatter as deciding or suggesting that a finding in a judgment not given effect to in the decree operates between the parties as res judicata. The fact that their Lordships in Soorjomonee Dayee v. Suddanund Mohapatter and in Krishna Behari Roy v. Brojeswari Chowdranee referred to the judgments of the High Court, and not to the decrees which had been made, does not suggest to us an inference that their Lordships considered that a finding in a judgment not given effect to by a decree can operate as res judicata, for in many cases it is absolutely necessary to examine, not only a judgment, but the pleadings, in order to ascertain on what matters a. decree is conclusive between the parties or their representatives. That such an examination is not only permissible but necessary in some cases is to be inferred from the judgment of their Lordships of the Privy Council in Kali Krishna Tagore v. The Secretary of State for India in Council L.R. 15 I.A. 186 : S.C. I.L.R. 16 Cal. 183. As the two authorities relied upon by the Court in Shaikh Enaetoollah's case did not in our opinion support the view as to res judicata expressed by that Court, we cannot regard the decision in Shaikh Enaetoollah's case as one of authority.

16. Having regard to the referring order and to the judgment in Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319, it appears that the Calcutta Full Bench took the same view as Markby and Romesh Chunder Mitter, JJ., had taken in Shaikh Enaetoollah's case of the decisions of their Lordships of the Privy Council in Soorjomonee Dayee v. Suddanund Mohapatter and in Krishna Behari Roy v. Brojeswari Chowdranee and assumed that the Privy Council had decided in those cases that a material finding in a judgment which was not given effect to in decree would operate as res judicata. In Jamaitunnissa v. Lutfunnissa I.L.R. 7 All. 606, Mahmood, J., considered that the decisions of their Lordships of the Privy Council in Krishna Behari Roy v. Brojeswari Chowdranee L.R. 2 I.A. 283, and Soorjomonee Dayee v. Suddanund Mohapatter L.R. I.A. Supp. Vol. 212, supported the decision of the Calcutta Full Bench in Niamut Khan v. Phadu Buldia.

17. In Nundo Lall Bhuttacharjee v. Bidhoo Mookhy Debee I.L.R. 13 Cal. 17, and in Thakur Magundeo v. Thakur Mahadeo Singh I.L.R. 18 Cal. 647, a Division Bench of the High Court at Calcutta refused to follow the decision of the Full Bench of that Court in Niamut Khan v. Phadu Buldea.

18. It does not appear from the report in Man Singh v. Narayan Das I.L.R. 1 All. 480, whether the finding as to the bond which was relied upon as res judicata was given effect to by declaration or otherwise in any of the decrees in the suit in which the Munsif had found against the bond. Having regard to the finding in that case that the decree upon the bond under which it was sought to sell the property in question had been passed without jurisdiction so far as that property was concerned, the finding that the bond was not a valid bond, would appear to have been a finding immaterial and unnecessary to the decision of the first suit. We are therefore unable to accept the ruling in that case as an authority in support of Mr. Viddya Charan Singh's contention.

19. It would appear from the report of Mohan Lal v. Ram Dial I.L.R. 2 All. 843, that the finding relied upon as res judicata had been given effect to in the decree by the dismissal of the suit. We shall again refer to that case later on.

20. It would appear from the judgment of Sir Robert Stuarut, C.J, in Luchman Singh v. Mohan I.L.R. 2 All. 497, and from the judgments of Oldfield and Mahmood, JJ., in Jamait-unnissa v. Lutfunnissa I.L.R. 7 All. 606, that those learned Judges considered that a party in whose favor a decree is has a right to appeal against the decree as not being in conformity with the judgment by reason of its not having embodied in it a finding expressed in the judgment, if that finding was adverse [188] to the party in whose favor the decree was. The reason of those learned Judges for that view apparently was that such finding would operate as res judicata, and consequently that the party considering himself aggrieved by it should have a right of appeal.

21. Holding apparently a contrary view of the law as to res judicata, Turner and Spankie, JJ., in Ram Ghoalm v. Sheotahal I.L.R. 1 All. 266, held that a party in whose favor a decree was, had a right of appeal against it in order to have a finding against him in the first Court upon which the decree in his favor was not made, considered and finally decided in appeal so as to preclude his opponent from raising that question again.

22. The opinions on this subject of Sir Robert Stuart, C.J., Turneer, Spankie, Oldfield and Mahmood, JJ., to which we have just alluded appear to be opposed to the views expressed by their Lordships of the Privy Council in Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer I.L.R. 12 I.A. 23, to which we shall refer later on.

23. In support of the contention that no finding could operate as res judicata against a party if that party had no opportunity afforded to him of questioning that finding by an appeal against the decree, Mr. Abdul Majid mainly relied upon certain dicta in the judgment in Anusuyabai v. Sukharam Randurang I.L.R. 7 Bom. 464. In that case West and Nanabhai Hari Das, JJ., said: 'In the case of Jania Gaba v. Hulia Waru it was said that ae incidental finding of a District Court on a question of title in a case not admitting of further appeal could not be res judicata as to that point in a future a suit. The decision could not be appealed against, and therefore on the incidental question was not final. The same principle applies where an appeal is excluded by the decree: a point is not finally decided against any party who is not allowed the opportunity of questioning the decision, with the exception of the particular points, as in small causes, to the judgment on which a special finality is given by the Statute.

24. It appears, however, to us that the operation of Section 13 of Act No. XIV of 1882 cannot depend on the question whether the parties or either of them is or has been allowed an opportunity of questioning the decision in the particular matter by an appeal against the decree in the suit. If it were a true proposition of law that 'a point is not finally decided against any party who to not allowed the opportunity of questioning the decision,' a finding of fact by a District Judge in an appeal which reversed the finding of fact in the same matter by a Munsif could never operate as res judicata, although the District Judge rightly applied the law in arriving at that finding and rightly applied the law on the facts so found by him. Sections 584 and 585 of Act No. XIV of 1882 would preclude an appeal from the decree of the District Judge in such a case. It would be an anomaly in the law that of material and necessary finding of the Munsif should, if his decree were appealable, but was not appealed against, operate as res judicata by reason of Section 13, explanation IV, and that the contrary finding of fact on the same matter by the District Judge, however material and necessary it might be for the decree of the District Judge, should not operate as res judicata owing to a second appeal not being, by reason of Sections 584 and 585, permissible in the particular case. Explanation IV of Section 13 of Act No. XIV of 1882 would, in our opinion, make applicable the first paragraph of Section 13 to the decision of the District Judge oh the matter, and such application satisfies us that the operation of the principle of res judicata under the law in British India cannot depend on the fact that an appeal does or does not lie against the decision of the matter in dispute. Subject to the observation that it may be necessary to examine the judgment and the pleadings in order to ascertain what matters have and what matters have not been decided by the decree, we think that the law on the question of res judicata was more correctly expressed in the judgment of the Madras High Court in Devarakonda Narasamma v. Devarakonda Kanaya I.L.R. 4 Mad. 134, than it was in Anusuyabai v. Sukharam Pandurang. In Devarakonda Narasamma v. Devarakonda Kanaya Innes and Muthusami Ayyab, JJ., said: 'The first defendant, Mr. Shaw represents, is apprehensive that the expression of the Judge's opinion in the judgment as So the adoption said to have been made by her may be held to be res judicata' upon that point in any suit hereafter instituted. As to this we are of opinion that to see whether a matter is res judicata you must look to the former decree. If the decree does not decide the question, it is not res judicata. Certain recent decisions appear to have held that the first clause of Section 13, Civil Procedure Code, precludes a second trial between the same parties of matters which have been in issue and upon which the Judge has expressed his opinion in a former suit. We do not agree in this view. The words has been heard and finally decided by such Court apply, not to the expression of opinion in the judgment, hut to what has been decided by the decree.' In Ghela Ichharam v. Sankal Chand Jetha I.L.R. 18 Bom. 597, Sir Charles Sargent, C.J., and Fulton, J., said: 'Where, however, the defendant sets up two grounds of defence to the relief sought by the plaintiff and succeeds cm one, which causes the dismissal of the plaint, the decision on the other issue in the plaintiff's favor cannot be said to be material to the determination of the suit it is, therefore, not res judicata and no appeal would lie against it, because as was remarked by the Privy Council in Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer, the decree was not based on it, but was made in spite of it.'

25. The question whether a party to a suit in whose favour the decree wholly is can appeal against that decree or against a finding in the judgment not embodied in, or given effect to by, the decree, and the question as to whether a finding in a judgment upon which finding the decree was not based, and in spite of which the decree was made, can operate as res judicata, appear tone concluded by the following passage in the judgment of their Lordships of the Privy Council in Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer L.R. 12 I.A. 23. At page 34 their Lordship are reported to have said: The widow has not appealed against the decree, nor could she, because it is in her favor, but she has appealed against the finding that the brothers were joint in estate. It may be supposed that her advisers were apprehensive lest that finding should hereafter be held conclusive against her, but this could not be so, inasmuch as the decree was not based upon it but was made in spite of it. If she had not appealed, she could heave supported the decree on the ground that the Court ought to have decided the question of separation in her favor.' Their Lordships threw out a suggestion that objection might have been taken that an appeal against a finding in a judgment did not lie, but no objection having been taken at the Bar, their Lordships heard the widow's appeal.

26. The case of Radhamadhub Holdar v. Monohar Mookejri L.R. 15 I.A. 97 : S.C. I.L.R. 15 Cal. 757, affords a good example of the application of the principle of res judicata. In that case Matangini, a zamindar, granted a patni lease to Mookerji and subsequently mortgaged the zamindari interest to Mookerji, who obtained a decree for sale upon the mortgage. At the sale which was held in execution of his decree, Mookerji purchased the zamindari interest, i.e., Matangini's interest in the property the subject of the patni lease. Whilst Mookerji's suit for sale was pending another creditor of Matangini gat a decree for money against Matangini, and in execution of it brought the zamindari interest of Matangini to sale and that interest was at that sale purchased by Radhamadhub. Radhamadhub after the purchase by him sued Mookerji for rent in respect of the patni holding, and his suit was dismissed on the ground that in Mookerji and not Radhamadhub had become vested Matangini's zamindari interest. The suit in appeal before the Privy Council was one subsequently brought by Radhamadhub against Mookerji for redemption of the mortgage granted to Mookerji by Matangini; and their Lordships having referred to the ground upon which the suit for rent bad been decided, said: 'On that ground the rent suit was decided against Radhamadhub. Radhamadhub now comes to redeem, but the right to redeem rests on precisely the same ground as the right to rent was rested. In each case the question is equally who is the true representative of Matangini? Therefore their Lordships conceive that the matter was expressly decided by the High Court in the rent suit.'

27. As affording a good illustration of a material finding in a judgment which by reason of the decree in the suit could not operate as res judicata and of the effect of a decree as superseding a finding in a judgment we may refer to the case of Jamaitunnissa v. Lutfunnissa I.L.R. 7 Ali. 606. In that case the two questions which were referred to the Full Bench of this Court were: (1) Whether the appeal to this Court on the part of the defendant Jamaitunnissa is maintainable? (2) Whether her objections under Section 361, Act No. XIV of 1882, in the Judge's Court were maintainable to appears from the report that the plaintiff had brought in the Court of a Subordinate Judge a suit to obtain possession of certain property by right of inherit' ance to one Sikandar Ali Shah, then deceased, and to set aside a deed of endowment (waqf-namah) which the plaintiff' alleged that the defendant had fraudulently induced Sikandar Ali Shah to execute. The Subordinate Judge found and held that the waqf-namah was not valid as against the plaintiff and could not interfere with the plaintiff's right of succession by inheritance, but, finding that the defendant was entitled to remain in possession of the property until a dower-debt due to her was satisfied, dismissed the plaintiff's suit without granting by his decree the relief which the plaintiff had claimed in his plaint as to the waqf-namah. The plaintiff appealed to the Court of the District Judge against the decree of the Subordinate Judge, and the defendant in that appeal filed objections under Section 561 of Act $o. XIV of 1882 to the finding as to the waqf-namah. The District Judge dismissed the plaintiff's appeal, and, considering that the question as to the waqf-namah was not necessary to the disposal of the plaintiff's claim, refused to consider the question as to the waqf-namah and disallowed the objections which had been filed by the defendant. From that disallowance the defendant appealed to this Court. The majority of the Full Bench, for reasons stated by them in their judgment, answered the two questions in the negative. The contrary view was entertained by Mahmood, J., and apparently by Oldfield, J. It appears to us that, whether the plaintiff in that suit was or was not entitled to the then present possession of the land, and although the defendant was entitled to the then present possession of the land in lieu of her dower-debt, the plaintiff, on the finding of the Subordinate Judge that the waqf-namah was not a valid deed which could interfere with the plaintiff's right of succession by inheritance to the grantor of that deed, was entitled to a decree setting that deed aside so far as it affected the plaintiff's interests, although his claim to the present possession of the land was dismissed. It may have been that on the finding that the defendant was entitled to the present possession in lieu of her dower-debt the finding of the Subordinate Judge as to the waqf-namah was in fact immaterial to her title to the then present possession, but that finding actually was material to one of the two reliefs claimed by the plaintiff. It also appears to us that the decree of the Subordinate Judge dismissing the plaintiff's suit was, as to the claim to have the waqf-namah set aside, at variance with the judgment, and that, if the finding as to the waqf-namah was correct, the plaintiff, and not the defendant, had a good appeal to the District Judge, as the relief claimed in the plaint as to the waqf-namah had not been granted by the decree. The relief as to the waqf-namah having been claimed in the plaint and not having been expressly granted by the decree, must, according to explanation III of Section 13 of Act No. XIV of 1882, be deemed to have been refused, and such refusal, notwithstanding the finding in the judgment that the waqf-namah was invalid as against and not binding on the plaintiff, would, by reason of Section 13, preclude the plaintiff from again alleging in any suit which the first Court was competent to try that the waqf-namah was not a valid deed binding upon him. In fact, having regard to the ground upon which that suit was dismissed, to the fact that the relief claimed in the plaint as to the waqf-namah was not granted by the decree, and to explanation III of Section 13 of Act No. XIV of 1882, all the issues, so far as the principle of res judicata as expressed in Section 13 was concerned, were finally decided by the Court below in the defendant's favour, and she had nothing about which to appeal, and had no appeal by way of objection under Section 561 of Act No. XIV of 1882, or otherwise to the Court of the District Judge, and had no appeal from the decree of the District Judge to this Court. Explanation III of Section 13 of Act XIV of 1882 does not depend upon any finding of the Court. in its judgment or upon the reasons of the Court for not granting the relief: it depends solely upon the fact that a relief claimed in the plaint was not expressly granted by the decree. By Section 2 of Act No. XIV of 1882, a 'judgment means the statement given by the Judge of the grounds of a decree or order,' and a ' decree means the formal expression of an adjudication upon any right claimed or defence set up in a Civil Court when such adjudication, so far as regards the Court expressing it, decides the suit or appeal.' It is obvious from the explanations to Section 13 of that Act that the decree which is the formal expression of the decision of the Judge may finally decide as between the parties matters which have not been set up as grounds of defence or attack.

28. Under such circumstances it appears to us that for findings to operate as res judicata they must have been findings upon which the decree or some operative part of it was made, and must have been findings which were necessary for the making of the decree in the way in which it or some operative part of it was made, and that it is the decree read in the light of such findings, and not the findings in the judgment apart from the decree, which finally within the meaning of Section 13 of Act No. XIV of 1882, decides the matters in issue or which might and ought to have been in issue (Explanation II) between the parties in the suit. If the decree is inconsistent with the findings, the decree prevails over the findings which are inconsistent with it. For an extreme example, if a plaintiff sued for an instalment alleged to be due under a bond alleged to have been made by the defendant in the plaintiff's favor and the defendant pleaded that the bond had been forged by the plaintiff and was not the defendant's bond, and the Court, having found that the bond had been forged by the plaintiff and was not the defendant's bond, and there being no other issue, yet gave the plaintiff a decree for the instalment claimed, it appears to us that the finding that the bond had been forged by the plaintiff and was not the defendant's bond could not operate as res judicata in a future suit between the same parties on the bond, because the decree was inconsistent with the finding, and so far as the decree spoke for itself it decided that the defendant was liable upon the bond.

29. In Ghela Ichharam v. Sankalchand Jetha I.L.R. 18 Bom. 597, Sir Charles Sargent, C.J., and Folton, J., held that when an issue is not necessary for the decision of a suit a decree couched in general terms does not cover the finding on that issue. With that negative proposition we entirely agree. But it is not clear to us that the converse affirmative proposition that a decree couched in general terms covers every finding which is necessary for the decision of the suit is correct in all cases. For example, the finding of the Principal Sudder Ameen in Bunwari Lall's suit upon the issue raised as to the validity of Bunwari Lall's adoption was a finding necessary in limine for the decision of the suit in the Court of the Principal Sudder Ameen, for if the validity of the adoption had not been established, Bunwari Lall had no legal right to ask for, and the Principal Sudder Ameen was not competent to express a decision on the validity of the patni lease, the plaintiff in that event having failed to prove that he had any interest affected by the lease, or any right to question its validity, and being on such finding an absolute stranger to all title necessary to support the suit. The decree of the Principal Sudder Ameen, dismissing Bunwari Lall's suit not having been based upon his finding that Bunwari Lall bad been validly adopted, and having been made in spite of that finding, it would appear to follow, from the passage which we have quoted from the judgment of their Lordships of the Privy Council in Rajah Run Bahadoor Singh Mussumut Lachoo Koer, that if there had been no appeal by Krishna Behari Roy from the decree of the Principal Sqdder Ameen, the finding as to the validity of the adoption of Bunwari Lall could not have operated as res judicata. It is obvious to us that their Lordships of the Privy Council in Krishna Behari Roy v. Brojeswari Chowdranee L.R. 2 I.A. 283, referred to the finding of the Principal Sudder Ameen only as one of the historical steps in the case leading up to the appeal to the High Court, and that when their Lordships said--'There exists, therefore, a final and complete judgment upon the issue raised either at the instance of Krishna Behari Roy, or which he adopted, on the very question which he seeks again to raise in this suit,'--they were referring to the decision of the High Court, which had dismissed Krishna Behari Roy's appeal, which was confined to the question of the validity of the adoption. The question as to whether Krishna Behari Roy bad any right of appeal against the decree of the Principal Sudder Ameen, which had dismissed Bunwari Lall's suit without granting by it any declaration that the adoption was valid, does not appear to have been raised before their Lordships. From the passage which we have already quoted from the judgment of their Lordships in Rajah Run Bahadoor Singh v. Mussummut Lachoo Koer L.R. 12 I.A. 23 at p. 34, it may be inferred that if objection had been taken that Krishna Behari Roy had no right of appeal from the decree of the Principal Sudder Ameen, their Lordships would have held that he had no such right, as he could have supported the decree of the Principal Sudder Ameen dismissing Bunwari Lall's suit on the ground that the Principal Sudder Ameen ought to have decided the question of the adoption in his, Krishna Behari Roy's favor.

30. That a finding on ah issue raising the question of the plaintiff's title may be necessary to the decision of the suit, and yet under some peculiar circumstances may not operate as res judicata on that question of title, although the decree could not have been made as it was made so as to be a good decree unless the issue as to the plaintiff's title had been found as it was found, may be inferred from the decision of their Lordships of the Privy Council in Rajah Run Bahadoor Singh v. Mussumut Lachoo Koer L.R. 2 I.A. 283. In that case their Lordships held on two grounds that the finding of the Civil Court on the question of separation did not operate in the subsequent suit as res judicata, the first ground being apparently that the Rent Court which tried the first suit was not a Court of jurisdiction competent to try the subsequent suit. The second ground of their Lordships' decision we shall give in their own words, as it depended to some extent upon matters which are not otherwise explained in the report of the case in L.R. 12 I.A. 23. The second ground was as follows:--'Having regard, however, to the subject-matter of the suit, to the form of the issue (which has been above set out) and to some expressions of the learned Judge, their Lordships are further of opinion that the question of title was no more than incidental and subsidiary to the main question, viz., whether any, and what, rent was due from the tenant, and that on this ground also the judgment was not conclusive.' It is obvious from the issue as to separation which is set out at p. 34 of L.R. 12 I.A. and from the fact that Run Bahadoor had intervened in the rent suit alleging that he and his deceased brother, whose widow the plaintiff in the rent suit was, had been joint members of the Hindu family, that a finding that the brothers had been joint and had not separated would have been fatal to the widow's suit in the Rent Court, and in that sense the issue as to separation was necessary to the decision of the rent suit. In the rent suit the widow in fact obtained her decree for the rent.

31. The result appears to us to be that a finding in a judgment to operate as ret judicata, the Court being a Court of jurisdiction competent to try the subsequent suit, must be material and necessary to support the precise and. particular ground or grounds on which the decree or some operative part of it was made, otherwise the finding must be considered either as superseded by the decree, or as entirely immaterial, or as no more than incidental and subsidiary to the main question in the suit, although in the latter case the finding may have been necessary to the decision of the suit.

32. The finding of fact to operate as res judicata, need not have been the sole finding of fact upon which the decree was made, but it must have been a material and necessary finding of fact, material and necessary in the sense that the fact must have been found as it was found in the judgment, and could not have been found otherwise, for the decree as it was made to have been a good result in law from the fact or facts so found. Further, if there were two findings of fact either of which would justify in law the making of the decree which was made, that one of such two findings of fact which should in the logical sequence of necessary issues have been first found, and the finding of which would have rendered the other of such two findings unnecessary for the making of the decree which was made, is the finding which can in our opinion operate as res judicata. For example, if A, alleging himself to be the legal representative of B, deceased, sues C. for breach of a contract which A alleges was made between and C on the 1st of January 1890, and C pleads that A is not the legal representative of B, and further that the contract was not one binding upon a minor, and that he, C, was at the date of the contract a minor; and the Court finds that A is not the legal representative of B, and that C on the 1st January 1890 was a minor; and that the contract was one which by reason of his minority when it was made was not binding on him, and makes a decree dismissing the plaintiff's suit, it appears to us that of those two findings that which would operate as res judicata between the parties was the finding that A was not the legal representative of B, because, until A had established his title to sue upon the contract as the legal representative of B, the defendant it could not be put to proof of his minority on the 1st of January 1890, and on the finding that A was not the legal representative of B, it became and was immaterial whether 0 was or was not a minor on the 1st of January 1890. In our opinion a matter cannot be said to be ' directly and substantially, in issue,' within the meaning of the first paragraph of Section 13, Act No. XIV of 1882, unless and until it is or becomes material for the decision of the suit to find as to it. The framing of issues under Section 146 of Act No. XIV of 1882, on which at that stage of the suit the right decision of the case appears to the Court to depend, does not of itself make the matter to which such issues relate 'directly and substantially in issue,' within the meaning of Section 13, although, when the finding upon any one or more of the issues is sufficient for the decision of the suit, it may be desirable, as was pointed but in Tarakant Banerji v. Puddomoney Dassee 5 W.R. P.C. 63, and in Devarakonda Narasammi v. Devarakonda Kanaya I.L.R. 4 Mad. 134, that the Court should state in its judgment its finding or decision upon each separate issue which it had framed.

33. Issues, as pointed out by James, L.J., in Robinson v. Duleep Singh, L.R., 11 Ch. D., 798, at p. 813, '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. If it were otherwise, a decision of a Court upon a matter as to which an issue had been framed might operate under Section 13 as res judicata, if the finding was not at variance with the decree, although the issue and the matter in dispute to which it referred were or became absolutely immaterial to the decision it the suit; and although the decree would have been a good decree in law on the material facts found, no matter how the issue as to that immaterial matter in dispute had been found. If the above view be correct, the finding of the Munsif that Rs. 188-7-4 was due upon the bond which was relied upon as res judicata in Mohan Lal v. Ram Dial I.L.R. 2 All. 843, did not operate as res judicata qua the precise amount due at the time when the suit for the return of the bond was instituted, although it did operate as res judicata on the simple question upon which the right to a decree in the suit depended, namely, whether at the time when that suit was instituted the debt for which the bond had been given was or was not discharged.

34. Applying the conclusion at which we have arrived to this case, the finding in the judgment pf the Munsif in the previous suit as to the plaintiff's title could not operate in this or in any future suit as res judicata, as the decree of the Munsif dismissing the plaintiff's suit, which was for a declaration of his title, was made on another and different ground, that ground being that the proviso to Section 42 of the Specific Relief Act, 1877, (Act No. I of 1877) applied, as the plaintiff in that suit for a declaration of title was not in possession and was consequently in a position to seek in that suit the further relief of a decree for possession, which he had not claimed; On the finding of the Munsif that the plaintiff was not in possession the proviso to Section 42 of the Specific Relief Act, 1877 (Act No. I of 1877) applied, and on its application the Munsif was not in our opinion competent to try the question of title, as the statute law prohibited him from giving effect by declaration to any finding that the plaintiff was entitled to the property. It is obvious that, had the Munsif inserted in his decree that finding as to the plaintiff's title, he would have been acting in violation of the proviso to Section 42 of Act No. I of 1877. The finding as to the plaintiff's title in the previous suit, as it could have resulted in no relief being granted to him in that suit, was immaterial, and it certainly was, in any point of view, under the circumstances unnecessary to the decision of that suit. Even if the decision of the Full Bench in Niamut Khan v. Phadu Buldia I.L.R. 6 Cal. 319, were correct in its application in the particular case before the Calcutta Full Bench, it could not be applied in this case before us, because the insertion in the decree in the first suit of a finding that the plaintiff had established his title would have been a declaration that he had the title which he claimed. Similarly no declaration of title could be made in a suit dismissed under Section 4 of the Indian Limitation Act, 1877 (Act No. XV of 1877), as a Court has no power in a suit barred by limitation to do otherwise than dismiss the suit on that ground. In our opinion in a suit, as, for example, that of Bunwari Lall against the patnidar, in which in order to try the other issue between the parties, it is first necessary to ascertain the title, the right or the status of a party, and a finding is expressed in the judgment upon an issue as to such title, right or status in favour of one party, but the suit is disposed of in favour of the other party by a decree on findings on other issues, the decree is not in conformity with the judgment unless it contains a declaration of such title, right or status in accordance with the finding in the judgment on that issue, provided that the statute law does not limit the form of decree to be made in the particular case, or prohibit the Court from making a declaration in the circumstances of the case.

35. If the practice which in our opinion is the correct practice, were fallowed in the preparation of decrees, most of these difficult questions as to the application of Section 13 of Act No. XIV of 1882 could not arise. We may further say on this subject that in our opinion when the decree is wholly in favor of the party in whose favor the finding as to the title, right or status is, such a declaration, unless expressly asked for, is unnecessary, as the decree in such a party's favor necessarily implies that the question of title, right or status was decided in his favor. That seems to follow from a consideration of explanation II of Section 13 of Act No. XIV of 1882. For example, if Bunwari Lall's suit against the patnidar had been decreed, the necessary implication would have been that he had been validly adopted. Similarly, if Shaikh Enaetoollah's first suit had been decreed, the decree for the enhanced rent would necessarily have implied that the tenure was one which allowed of the rent being enhanced and that the other circumstances existed which entitled the landlord to a decree for enhanced rent.

36. The result is that we allow this appeal and set aside the order of this Court with costs, and dismiss with costs the appeal to this Court, and restore and affirm the decree of the District Judge.


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