Lakshmi Prasad, J.
1. This is a defendants second appeal. One of the defendants-appellants died during the pendency of the appeal and has been substituted by his heirs. Likewise the plaintiff-respondent died during the pendency of the appeal and has been substituted by his heir Swami Nath.
2. The dispute in this case relates to a portion of plot No. 34, 2 bighas 4 biswas and 10 dhurs in area. Relying on a registered patta dated the 10th of October, 1948, executed in his favour by the then zamindar the plaintiff-respondent filed a suit in respect of the disputed piece of land against the defendants-appellants in the year 1950 purporting to be one under Section 180 of the U. P. Tenancy Act on the allegation that the plaintiff-respondent was a tenant of the disputed land whereas the defendants-appellants had trespassed on it only a few days before the suit.
In defence the detendants-appellants plead ed that they were in possession with the permis sion of the zamindar ever since December, 1929, in accordance with a deed of licence executed in their favour on the 17th of December, 1929. The trial Court in that suit held that the Ijazat-nama dated the 17th of December, 1929, resulted in creating hereditary rights in favour of the defendants-appellants and accordingly dismissed the suit. The plaintiff-respondent went in appeal which was dismissed by an Additional Commissioner. He then preferred a second appeal before the Board of Revenue The Board of Revenue held that even though the document relied on by the defendants-appellants did not make them hereditary tenants still the allegation of the paintiff-respondent on the basis of which he founded his claim under Section 180 of the U. P. Tenancy Act was incorrect and as such his suit must fail notwithstanding the fact that the status of the defendants-appellants with reference to the disputed land was only that of a non-occupancy tenant as provided in Section 30 of the U. P. Tenancy Act. Thus the Board of Re-venue dismissed the appeal. It is thereafter that the suit giving rise to this appeal was instituted seeking the ejectment of the defendants-appellants under the provisions of Section 202 of the U. P, Zamindari Abolition and Land Reforms Act. The appellants pleaded that they were not non-occupancy tenants but were hereditary tenants under the provisions of the U. P. Tenancy Act and became sirdars under the provisions of the U. P. Zamindari Abolition and Land Reforms Act.
3. The trial Court upheld the plea raised in defence and dismissed the suit. The plaintiff-respondent went in appeal. The lower appellate Court held that under the Ijazatnama dated the 17th of December, 1929 the appellants could not claim any right higher than that of a non-occupancy tenant as provided in Section 30 of the U. P. Tenancy Act and as such they became asamis under the provisions of the U. P. Zamindari Abolition and Land Reforms Act and were liable to ejectment. In the result the lower appellate Court decreed the suit. It is in these circumstances that the defendants have come up in second appeal.
4. I have heard learned counsel for the parties.
5. The main contention of the learned counsel appearing for the appellants is that the view of the lower appellate Court that the appellants could be only non-occupancy tenants by virtue of their possession under the deed dated the 17th of December, 1929, is erroneous. The material portion of the deed Ex. A-3 has been reproduced in the judgment of the lower appellate Court. It appears therefrom that the disputed piece of land which was then lying as Usar was given to the appellants with liberty to use it as pasture land or to plant trees on it or to bring it under cultivation on condition that in case they brought it under cultivation they would be liable to pay rent according to the quality of the land. Since the deed Ex. A-3 gives liberty to the appellant to use the disputed piece of land for the purpose of pasturage the lower appellate Court has held that Section 30 of the U. P. Tenancy Act applied so as to prevent hereditary rights accruing in favour of the appellants under Section 29 of the U. P. Tenancy Act. It is this view of the lower appellate Court which is challenged by the learned counsel and his contention is that there could rise no occasion for Section 30 of the U. P. Tenancy Act to apply unless the land let was pasture land. In other words he argues that where Usar land is let with liberty to the lessee to bring it under cultivation or to use it as pasture land there arises no occasion for the application of Section 30 to such land.
In my view the contention is right. Section 29 is general. It clearly provides for the accrual of hereditary rights in favour of a tenant in possession, unless he is a tenant of one of the kinds enumerated in Clause (a) of Section 29. Section 30 is in the nature of an exception to the general provision in Section 29 and provides that no hereditary rights would accrue in pasture land. That being so, it is obvious that Section 30 would apply where pasture land is let. In thiscase the Ijazatnama Ex. A-3 itself shows that the disputed land at the time it was given to the appellants was Usar and they were given option to use it for any of the purposes mentioned therein including the purpose of pasturage. That being so, I agree with the contention of the appellants' counsel that Section 30 is not attracted to the case and the view of the lower appellate Court to the contrary is erroneous.
6. Learned counsel for the plaintiff-respondent contended that the appellants were not entitled to claim any right in the disputed land on the basis of the deed Ex. A-3 which was an unregistered document. I am unable to appreciate the contention. Even if it be assumed for a moment that the deed Ex. A-3 would not be effective as a lease for one reason or the other, the fact still remains that it has been found between the parties in the previous litigation referred to above that the appellants were in possession of the disputed land in accordance with the deed Ex. A-3. That being so, it is now settled between the parties as to when and on what terms the possession of the appellants over the disputed land started. The very fact that the plaintiff-respondent had to bring a suit for ejectment is enough to show that the appellants are and have been in possession of the disputed land. Once it is found that the appellants have been in possession ever since December 1929, and that has got to be held because of such a finding recorded between the parties in the earlier suit, it follows that the appellants acquired tenancy rights under the provisions of the U. P. Tenancy Act. Likewise it must be held that Section 29 applied to confer hereditary rights on the appellants the moment it is found that Section 30 had no application. 1, therefore, see no force in the contention that because or the deed Ex. A-3 being unregistered, the appellants are not entitled to get any rights and repel the same.
7. Learned counsel tor the plaintiff-respondent when confronted with the position indicated above took up the stand that the finding in the earlier litigation that the appellants were actually non-occupancy tenants would also operate as res judicata in this litigation. In support of his contention he places reliance on three cases, viz. (1) Veerasami Mudali v. Palani-yappan, 46 Mad LJ 515 = (AIR 1924 Mad 626). (2) N. Venkateswarlu v. B. Lingayya, ILR 47 Mad 633 = (AIR 1924 Mad 689) and (3) Murad Biswas v. Basti Mandal : AIR1929Cal449 . In my view none of these cases assists the plaintiff-respondent. The correct legal position is that a finding given against a party in a litigation which terminates in favour of that party cannot operate as res judicata in a subsequent litigation in which arises a similar controversy. None of the three cases cited by the learned counsel appears to decide to the contrary.
8. The head-note in 46 Mad LJ 515, case is somewhat misleading. The correct position can be ascertained on a reference to what is said in the course of the judgment on page 521 of the report (Mad LJ) - (at p. 633 of AIR). The material observations run as below :--
'The question .... remains as to whether the matter is res judicata by reason of the decree in O. S. No. 994 of 1907 whereby it was declared that plaintiff as inamdar was entitled to the plaint land together with costs of the suit, but at plaintiff's suit was dismissed inasmuch ax the notice to quit given by him was irregular'.
It is thus obvious that the finding given against the defendants in the earlier suit with regard to the question of title agitated by the plaintiff in that Madras case was bound to operate as res judicata in a subsequent suit notwithstanding the fact that the earlier suit for possession was dismissed for the reason that a valid notice to quit had not been given, in so far as a decree for declaration as asked for by the plaintiff had been given. It was thus not a case which terminated in favour of the defendant in its entirety.
9. Exactly similar criticism applied to thesecond Madras case referred to aoove, apart from the fact that the point in controversy before me did not arise directly in that case. As appears from the head-note in that second Madras case the point in issue in the case was if a defendant where the suit had been dismissed could maintain a second appeal. It is in that connection that the learned Judge who decidedthe case said that where the point decided adversely to the defendant is directly and substantially in issue, and where in other proceedings the matter would be res judicata, it would be contrary to all principles of justice and equity to hold that the defendant is precluded from agitating the matter on appeal merely because the suit was dismissed on some other ground. From the facts it appears that the plaintiff had brought the suit on the basis of a lease granted to him by the first defendant and sought a declaration that the sale of the property leased to him by the official receiver in the insolvency of the first defendant's father was inoperative because on partition between the two much earlier then the insolvency, the property had fallen to the share of the first defendant. On these facts it is obvious that the interests of the plaintiff and the first defendant were identical and as such the first defendant would have at much a right of second appeal from the dismissal of the suit us the plaintiff himself.
I accordingly tail to see as to how it lays down the proposition contended for by the learned counsel for the plaintiff-respondent. The head-note in the Calcutta case cited by the learned counsel is also misleading. The following observations from the body of the judgment on page 449 will make the position clear :--
'The tacts therefore are not that the suit was dismissed on a preliminary point making it unnecessary for the Court to go into the other questions that arose in the suit but that the questions were decided and made the foundation of a decree declaring the plaintiff's title, and one of the prayers in the suit, namely, that for khas possession', was refused on the ground that notice had not been served on the defendant'.
It is thus obvious that even this is not a case in which the suit had terminated in favour of the defendant in its entirety in so far as theplaintiff had been given a declaration in regard to the question of title, and hence the finding on the issue pertaining to title would necessarily operate as res judicata in a subsequent litigation between the same parties. Here we are concerned with a case where the suit under Section 180 of the U. P. Tenancy Act was dismissed on the ground that the case put forth by the plaintiff-respondent that the appellants had taken possession as trespassers was incorrect and in fact the appellants were in possession in accordance with the deed Ex. A-3. If the Court in the earlier litigation even after coming to the above mentioned conclusion proceeded to decide as to what would be the rights of the appellants under the deed Ex. A-3 then certainly such a finding would not operate as res judicala in a subsequent proceeding between the same parties for the simple reason that it was hardly necessary for that finding being recorded in the earlier suit.
10. In the case of Abhey Ram v. Jhanda : AIR1929All910 , it was held:
'Any issue decided by a Court in favour of the plaintiff whose suit is ultimately dismissed on another ground, cannot operate as res judicata as against the defendant in a subsequent suit. A finding cannot be conclusive against a party if the decree was not passed upon it but was made in spite of it'.
The case was followed by a Division Bench of this Court in a subsequent case of Parathnath v. Rameshwar Pratap Sahi, : AIR1938All491 . If I may say so with respect that is the correct legal position and the decisions given in these cases fully apply to the present case. The following observations made in the case of Midnapur Zamindari Co., Ltd. v. Naresh Nara-yan Roy, AIR 1922 PC 241 at p. 243, also indicate that the contention raised by the learned counsel for the plaintiff-respondent cannot be upheld :--
'Their Lordships do not consider that this will be found an actual plea of res judicata, for the defendants, having succeeded on tin other pleas, had no occasion to go further as to the finding against them'
11. I accordingly conclude that the question as to whether or not the defendants-appellants have acquired hereditary rights by virtue of their possession in accordance with the deed Ex. A-3 is open for decision in this litigation notwithstanding the finding recorded against then in the earlier suit under Section 180 of the U. P. Tenancy Act.
12. No other point has been urged beforeme.
13. For the reasons given above. I allow the appeal and dismiss the suit of the plaintiff-respondent with costs throughout.