M.N. Shukla, J.
1. This is a defendants' second appeal arising out of a suit for possession, damages and mesne profits in respect or a house. The question of law which has been sharply debated before me in the present case is of some importance and may be formulated as under :--
'What is the effect of the decision in a rent suit about title on a later title suit between the parties?'
2. The material facts of the case are that the plaintiffs claimed themselves to be the owners of the house in dispute and alleged that they had formerly taken the land on lease and at that time a Kachcha house stood thereon, that they built the disputed house in the year 1956, that two kothris in suit were let out at Rs. 5/- per month to the defendants Nos. 1 and 2, that they did not pay rent to the plaintiffs despite notice of demand and also denied the plaintiff's title. The plaintiffs then brought a suit against the defendant No. 1 for ejectment and arrears of rent. It was held in that suit that the plaintiffs had no title in the property in suit and that the defendants Nos. 1 to 3 were the owners of the house in question and the site thereof belonged to them as lessees of the plaintiffs. The plaintiffs lease stood forfeited, but the plaintiffs' suit was dismissed on 22-8-1960. That suit was numbered as 845 of 1959. The plaintiffs then filed the present suit for declaration of title and possession over the two kothris. The mesne profits and damages were also claimed at the rate of Rupees 10/- per month.
3. The defence to the suit was that about 50 years ago the plaintiffs' father Ninua and one Senda took some land as permanent lessees on a yearly rental of Rs. 15/-, that the land was later divided between the ancestors of the present inhabitants who were to pay the proportionate rent of the land and that the defendants and the other residents of the locality had been coming down in possession accordingly. It was pleaded that previously one Chunni Lal, father of Dal Chand, took the site of the house in suit on rent at a monthly rental of Rs. 8/2/- about 20 years ago, that his interest terminated and the said house used by him fell down, that at that time Ninua and the descendants of Senda, original lessees, leased out the site of the disputed house to the father of the defendants Nos. 1 and 2 and husband of the defendant No. 3 on an yearly rent of annas twelve. The house in suit was said to have been constructed by the father of the defendants Nos. 1 and 2 as permanent lessees and the defendants claimed to be in possession accordingly. The plaintiffs' right, title or interest in the house in suit were denied. It was also pleaded that the suit was barred by res judicata.
4. The trial Court held that the suit was barred by res judicata, that the plaintiffs were not the owners of the house in question and that the defendants were not the permanent lessees of the site. With these findings the suit was dismissed. The plaintiffs went up in appeal against the decree of the trial Court which was allowed and the suit was decreed. The findings recorded by the lower appellate Court were that the plaintiffs had constructed the house in suit and it belonged to them and further that the present suit was not barred by res judicata. Aggrieved by the decree of the lower appellate Court the defendants have come in second appeal to this Court.
5. The only question canvassed before me on behalf of the appellants was that the finding in the earlier suit No. 845 of 1959 of the Court of Munsif, Agra, decided on 22-8-1960 to the effect that the house in suit was constructed by the defendants and not by the plaintiffs was binding on the parties and would operate as res judicata. That suit was brought by Hukmi Ram and Bhajan Lal, the present plaintiffs against Sita Ram defendant-appellant for arrears of rent and ejectment on the allegation that he was the plaintiff's tenant in the two rooms which are the subject matter of the present suit as well. So far as the plaintiffs were concerned, the suit proceeded entirely on the basis of relationship of landlord and tenant. The contention of the defendant in that suit, however, was that he was the tenant of the land only and not of the house standing on the site which belonged to him and which had been constructed by the defendant's father as permanent lessee of the land. He also claimed to be paying rent of the site through the plaintiff No. 1. It was further contended by the defendant that the plaintiffs as well as the other persons were the owners of the site. Before coming to the issues which arose for decision in that suit and the findings which were actually recorded I would like to deal with the proposition of law which has been argued before me.
6. The learned counsel for the appellant strenuously contended that even in a rent suit the decision on the question of title pointedly raised and adjudicated would operate as res judicata in a subsequent suit of title between the same parties. It was argued that the nature of the previous suit was wholly irrelevant and what had to be considered was whether the same matter was directly and substantially in issue between the parties in the earlier litigation and whether it had been decided. As against this the learned counsel for the respondents submitted that the decision in a rent suit which is based primarily on the relationship of landlord and tenant between the parties has to be construed in that very context and any finding or observation recorded on ownership or title cannot be deemed to be a matter directly and substantially in issue or decided in the previous suit and, therefore, it would not operate as res judicata.
7. The rival contentions of the parties in the present case have in fact been raised in serveral decisions and the propositions of law stated in that connection have sometimes fallen into diametrically opposite patterns. One set of decisions has countenanced the view that the plea of title either raised or decided in a purely rent suit is foreign to the nature of that suit and hence a finding recorded on that point must be deemed to have been recorded only incidentally or collaterally. It should, therefore, in no case operate as res judicata between the parties in a later title suit. A contrary view which has been expressed in other decisions is that any finding recorded or opinion expressed on the question of title, though (not Ed.) within the ambit of the rent suit, must be regarded as binding between the parties in a subsequent suit.
8. In my opinion the correct legal position lies mid-way between these two extreme propositions. It cannot be laid down as a general rule that any opinion expressed with regard to title in a rent suit must be treated as res judicata between the parties in a later title suit. On the other hand, this would also not be a safe proposition to assert that a palpable decision on the question of title raised in a suit for rent simpliciter, should be disregarded in a title suit as being foreign to the nature of that suit. I shall refer presently to the authorities which have been cited at the bar but the general rule which may be safely adopted in this regard seems to be that there is nothing incompatible between a suit for rent and an adjudication on the rights and title of the parties. It is quite permissible for the Court to go into the question of title in a rent suit provided the question has been actually raised. It may be raised in either of two ways. Either the plaintiff may himself base the suit for rent on the pleas of title as well as lease or the plaintiff may bring before the Court only the plea of relationship of landlord and tenant and the defendant may challenge the title of the plaintiff. In that event, unless the plaintiff admits the defendant's challenge of title, the question directly in issue between the parties will be one relating to title. These are two modes in which the question of title can become the subject-matter of issue between the parties in a simple rent suit. If the parties lead evidence and are heard on that point of controversy and the plea is adjudicated upon by the Court in the rent suit, in my opinion the finding recorded in such suit will certainly be binding on the parties in a later title suit. There can be no fixed criterion for ascertaining whether the question of title was directly and substantially in issue in a previous suit. One crude test may be as to whether an issue of title was actually struck in the previous suit or not. That may be in a large number of cases a very safe test but in my opinion that cannot be regarded as conclusive. The reason is that despite an issue sometimes the Court may abstain from giving a decision on that issue or vice versa, there may be a decision even without a clear issue. I am in respectful agreement with the view expressed in Bishun Das v. Laxmi Narain : AIR1949All596 which is as follows :--
'Not only that an issue expressly raised and decided for the purpose of determining the right or liability for a particular period is to be regarded to be directly and substantially in issue and not only collaterally and incidentally in issue, but also where the right or the liability has been determined without such an issue having been raised and decided such an issue will be deemed to have been directly and substantially in issue and to have been impliedly decided.'
9. Another relevant consideration for coming to the conclusion as to whether a matter was directly and substantially in issue in the previous suit and was decided is as to whether the judgment in the earlier suit was founded on that plea. If that point was the basis of the decision in the earlier suit, then the conclusion becomes irresistible that the point was 'decided' in that litigation. If, on the contrary, that plea did not form the basis of the decision and the judgment was founded on some other ground, the conclusion would be that the point was not decided between the parties in the earlier suit. This somewhat paradoxical situation will be more discernible where the judgment is delivered on more than one issue, either of which may be sufficient to dispose of the suit. The argument which may sometimes be raised in such decisions may be that since only one of the issues was sufficient to dispose of the whole case, the decision on another issue such as that of title cannot be said to be the basis of that decision. It was held in Barkat Ali v. Mumtaz Ali : AIR1956All128 as follows:--
'Section 11, Civil P. C. makes any decision on question which is directly and substantially in issue res judicata. So where there are findings on two issues in a previous suit, both findings standing exactly on the same footing and the questions under both the heads are substantially involved in the decision of the case, the decision on both the points must be deemed to operate as res judicata, although decision on either may be sufficient to dispose of the case.'
In a Full Bench decision of this Court in Lakshman Prakash v. I. T. Commr. : 48ITR705(All) it was observed by Desai, C. J.--
'The law is that when a court decides a case on two alternative findings, each one of them operates as res judicata and is a binding authority and that a trial court should, decide all issues, even though the findings on some of them are sufficient to enable it to decide the case one way or the other.'
Therefore, the argument that in a rent suit the findings relating to title or the judgment pronounced on the question of title will not be res iudicata on the ground that the suit could be disposed of on one issue only namely the relationship of landlord and tenant, must be repelled.
10. As I have indicated earlier, the acid test which may be applied to these questions is as to whether the earlier judgment was founded on the question of title or not; in other words, whether the plea of title had gone into the making of the decree. The rule was summed up in Laxman v. Saraswati : AIR1961Bom218 in these Words:--
'A finding can operate as res judicata only if it has resulted in a particular decree or order. Where a decree or order is based on only one finding, the finding would have the force of res judicata. Similarly, a finding cannot be res judicata if it has not gone into the making of a decree or order, i.e., if the decree or order was passed in spite of the finding, as where a finding was recorded against a party who succeeded or in favour of a party who failed, on other issues.
'Where a previous decision is supported on two or more findings all the findings will not necessarily operate as res judicata. Where the previous suit was dismissed on a technical ground which made the suit untenable, findings recorded on the merits would normally be obiter dicta. Similarly, if the court which decided the prior suit has itself based the decision on only some of the findings recorded by it, or if under the circumstances of the case its decision can be fairly attributed to only some of the findings so recorded, the other findings would not operate as res judicata. In other cases, where the previous decision is based upon, and is attributable to several findings, all the findings will have the force of res judicata.'
11. The learned counsel for the parties relied on various authorities in support of their rival contentions but I find nothing in those cases which runs contrary to the touchstone which I have mentioned above for determining the bar of res judicata. The appellants first referred to Lalji Saheb v. Munshi Lal : AIR1943All340 wherein it was held:--
'When parties to a litigation join issue upon the question of title and adduce evidence and invite a decision by the Court, that decision will undoubtedly operate as res judicata and will not in any way be affected by the circumstance that the earlier suit was valued as a suit between a landlord and a tenant and not as a suit upon title.'
From the narrative given at page 341 of the report it becomes clear that in the earlier suit on the basis of which the plea of res judicata was raised the plaintiff did not clearly set up a relationship of landlord and tenant between himself and the defendant. On the contrary, he specifically alleged himself to be the owner of the property and this claim was repudiated by the defendant who claimed title in himself. It is thus clear that in the earlier suit even though the plaint therein was valued as a suit between the landlord and the tenant, the pleadings of the parties specifically raised the plea of title alone and not that of relationship of landlord and tenant. It, therefore, necessarily follows that the matter which was directly and substantially in issue in the earlier suit and which was actually decided was that of title alone. Hence, it must operate as res judicata in a later suit between the same parties based on title.
12. The next case on which the appellants placed reliance was Ramkaran Singh v. Parbati Kuer : AIR1954Pat443 wherein the ratio was stated in paragraph 7 in the following words:--
'It is urged that the first suit was a rent suit and the present one is a title suit, and as such the scope of the two suits cannot be said to be identical. This argument, again, has no substance inasmuch as if the question of title is raised in a rent suit and is gone into, it is wholly immaterial what the nature of the previous suit was. All that law requires is that the matter directly and substantially in issue in the suit in which res judicata is sought to be applied should have been directly and substantially in issue in a former suit between the same parties. If this condition is satisfied, it is wholly immaterial that the nature of the two suits does not tally, and, accordingly it is also settled by authorities that the question of title gone into in a rent suit may operate as res judicata in a subsequent suit based on the same title. This argument, therefore, must fail.'
All that this decision emphasised was that the nature of the two suits was immaterial and if the question of title was actually raised and decided, the earlier decision would operate as res judicata. It also negatived the argument that in every rent suit it must mechanically be inferred that the question of title was gone into only incidentally or collaterally notwithstanding the fact that the plea of title was expressly raised and actually decided. It may also be noted that in that case the earlier decisions on which the plea of res judicata was founded had also decided the question of title, as the Court had in order to determine the status of the defendant gone into the question as to whether settlement of rent claimed in their favour had been made by only one of the co-sharers or all the co-sharers. In Sm. Kshiroda v. Debendra Nath : AIR1957Cal200 the same proposition was accepted and it was held that even though the earlier suit was a rent suit, the decision therein would operate as res judicata on the frame question raised in a subsequent suit involving rival claims as to the Shebaitship of the deity.
13. On the other hand, the learned counsel for the respondents referred to Durgapada Dalai v. Manindra Nath Ukil, 63 Ind Cas 762 (Cal). The facts of that case were that in 1911 a suit for rent was brought by the plaintiff against two defendants in respect of certain plots of Jand. The defence of defendant No. 2 was that there was no relation of landlord and tenant between him and the plaintiff. He did not set up any title in himself but pleaded that he held the land under the Zamindars. The question raised in that case was whether the defendant No. 2 was liable for the rent claimed and it was decided in the affirmative. There was no decision on the question of title and even if there was any, such decision was only incidental. It was therefore held that the decision in the rent suit would not operate as res judicata on the question of title in the suit for declaration of title and recovery of possession. The ratio or this case is quite in conformity with the rule enunciated above.
14. The respondents also relied on another decision of the Calcutta High Court reported in 50 Ind Cas 598 : (AIR 1919 Cal 131) Sondulla Sarkar v. Durga Kanta. In that case the plaintiff had brought a former suit against the defendant claiming rent from him on the footing that the defendant was a bhag tenant. That suit failed. The plaintiff thereupon filed the latter suit to eject the defendant. It was alleged that the latter suit could not be brought having regard to the fact that the decision in the rent suit was res judicata. The learned Judges who decided that case applied precisely the test which I have formulated in this context namely 'as to what was decided in the rent suit.' They observed, 'The first thing to be seen is what was the issue and what was the decision in the rent suit'. They came to the conclusion that the real point decided in the earlier suit was that the plaintiff had failed to establish the tenancy of the defendant and the question of title was only incidentally considered. In these circumstances it was held that the observations with regard to title did not form the basis of the judgment of the earlier suit which was in fact founded on the consideration as to whether the defendant was or was not the tenant of the premises. Consequently, it was held that the previous decision could not be set up as having the force of res judicata.
15. Lastly, the respondents relied on the case Raghubans Mani Prasad v. Hardeo Singh : AIR1955Pat393 which rules, that where in a previous suit for rent the principal question for decision was the rate of rent payable by the defendant and the question of status of the defendant viz., whether he was a thikadar or raiyat though raised by him had become unnecessary for decision as a result of the finding given by the Court on the validity of a certain lease, it was held that the decision on the question of status in the previous suit was not directly and substantially in issue in the previous suit and as such it could not operate as res judicata in the subsequent suit for possession and mesne profits between the parties. So the criterion applied was as to whether the basis of the decision in the rent suit was adjudication of title or merely the relationship of landlord and tenant.
16. Therefore, the principle which emerges is that it has to be seen whether in the previous suit the question of title was actually raised and also decided. In other words, the nature of the suit is immaterial: and by itself will not preclude the plea of res judicata in the subsequent suit but it has; always to be examined as to whether the plea of title had gone into the making the decree in the earlier suit i.e., whether the court had founded its decision on tide or the decision actually rested on the relationship of landlord and tenant and the finding on title was recorded only incidentally or collaterally.
17. The question, therefore, which has to be decided in the instant case is whether the decision in the earlier suit No. 845 of 1959 is attributable to an adjudication of title or whether that decision was based on other issues or pleas. In other words, we have to see what were the issues in the rent suit and what was the decision on them. The material issues which were framed in the rent suit were as follows:--
1. Whether the relationship of landlord and tenant exists between the plaintiffs and the defendant in respect of the premises in suit?
2. Whether the defendant is a permanent lessee or sub-lessee of the land beneath the premises in suit and the premises have been built by the defendant or his ancestors?
3. What is the amount of rent due?
5. To what relief, if any, are the plaintiffs entitled?
While deciding issue No. 1 the Court observed that in the circumstances of the case it would be reasonable to presume that the house in suit was constructed by the fatherof the defendant and also that the plaintiffs had failed to prove that the house in suit was constructed by them. But while recording its finding on issue No. 1 the Court observed that the onus of establishing the relationship of landlord and tenant was on the plaintiffs which they had failed to discharge and in the last sentence of his observation the learned Munsiff concentrated his attention on the sole question of tenancy and remarked:--
'Upon a careful consideration of the entire evidence both oral and documentary on the record I come to the conclusion that the defendant has not been proved to be the tenant of the house in suit. I hold accordingly.'
18. It will also be evident from the issues framed in that suit that the question of title did not form the subject of any issue. Issue No. 2 related to the question as to whether the lease in respect of the site was a permanent lease or a sub-lease. The title of the house in suit was not raised in any issue nor decided. The part of this issue which related to the question of construction of the house in suit did not involve a question of title of the house but was ancillary to the question as to whether the relationship of landlord and tenant existed between the parties. It was for the purpose of deciding the question of tenancy that it became pertinent to decide as to whether the house was built by the defendants as claimed by them or by the plaintiffs as alleged by them. That is why the court did not enter into any discussion on the title of the house while disposing of the latter part of issue No. 2. It merely stated:--
'As observed by me above it will be presumed that the house in suit was erected by the defendant or his father.'
Thus, the Court did not enter upon the adjudication of title at all. In its finding on issue No. 3 also all that the court observed was:--
'In view of my findings on Issue No. 1 no rent can be said to be due.'
As regards the issue about the appropriate relief to be awarded to the plaintiffs which is Issue No. 5, the Court decided that issue also in the same fashion and recorded its findings in these words:--
'In view of my finding on issue No. 1 the suit must be dismissed with costs.'
Thus, it cannot be doubted at all that all the material issues were decided by the learned Munsif in terms of his decision on issue No. 1 which was about relationship of landlord and tenant between the parties and on which alone the whole decision was founded. The question which the court proposed to answer was whether the relationship of landlord and tenant subsisted between the plaintiffs and the defendants and the question as to who had constructed the house was only incidentally gone into for the purposes of deciding the essential issue. Thus, I am of the opinion that the decision in the rent suit was not founded on title. The sole emphasis of the judgment was on the plea of tenancy and, therefore, it would not operate as res judicata in subsequent suit. It is a corollary from this that in a later title suit it is open to the court to come to a different finding with regard to the question as to who had constructed the house in suit inasmuch as that finding was now to be based on such evidence as had been produced by the parties in the later suit. The jurisdiction of the latter court could not be restricted by the finding in that regard recorded on the basis of the evidence in the earlier rent suit. The findings of fact recorded by the lower appellate court were that the plaintiffs had succeeded in etablishing their title to the house and that the suit was not barred by res judicata and that the house was built by them. Those findings cannot be disturbed in second appeal. I have also held that the suit was not barred by res judicata and consequently the plaintiffs were entitled to a decree for declaration to the effect that they were the owners of the house and also for possession over the property in suit.
19. In the result this appeal fails and is dismissed with costs.