1. The question in this appeal is whether the suit of the plaintiff-respondent is barred by the rule of res judicata. The facts are these: On the 15th of November, 1899, a lease was granted by Indar Sahai, plaintiff, who is the zamindat of the village, to Ajudhia Prasad and Muthra Prasad, the pre-decessors-in-title of the appellants. The lessees alleging that they had been dispossessed brought a suit for recovery of possession and compensation and obtained a decree on the 25th of March 1903. They obtain-ed formal possession on the 4th of September 1903 but were again dispossessed and thereupon they brought another suit on the 4th of March 1904 for recovery of possession and compensation. This suit was decreed by the Court of first instance on the 30th of September 1904 and the decree was affirmed in appeal.
2. The possession was delivered on the 19th of November 1905. On the 4th of December 1905, the lessor brought the suit which has given rise to this appeal against the lessees for arrears of rent for the period from the 5th of March 1904 to the 19th of November 1905. On the 3rd of January 1906, the lessees brought another suit for compensation for the same period that is, for the period sub-sequent to the date of the institution of the suit brought by them on the 4th of March 1904, to the date of delivery of possession, namely the 19th of November 1905. This suit was decreed by the Court of first instance on the 5th of June 1906. Indar Sahai appealed against this decree to the Commissioner but his appeal was finally dismissed. The Court of first instance dismissed the suit for arrears of rent brought by the lessor, holding that during the period for which rent was claimed the lessees were out of possession, This finding was in accordance with the result of the litigation which ended in the decree of the 30th of September 1904. From the decree passed in the suit brought by the lessor an appeal was preferred to the District Judge. The appeal prevailed and the suit of the plaintiff lessor was decreed. Upon second appeal to this Court the decision of the lower appellate Court was set aside and the case was remanded to that Court. After remand the learned Judge adhered to his original decision and decreed the claim of the lessor. From this decree the present appeal has been preferred.
3. It is contended that as before the decision of the appeal to the lower appellate Court in this case the decree in the suit brought by the lessees had become final, the matter in issue in this case has become res judicata-. in consequence of that decree. This contention is in our judgment well founded. The learned Judge overruled the plea of res judicata on the ground that the present suit had been instituted before the institution of the suit of the lessees in which they obtained a decree from the Court of first instance on the 5th of June 1906 and that, therefore, the finding in that suit cannot be deemed to be a finding in a former suit and the rule of res judicata does not apply.
4. With this view we are unable to agree. It was held by a Full Bench of this Court in Balkishan v. Kishan Lal 11 A. 148 that the rule of res judicata, so far as it relates to the re-trial of an issue, 'refers, not to the date of the commencement of the litigation but to the date when the Judge is called upon to decide the issue.' The legislature has given effect to this ruling by adding to Section 11 of Act No. V of 1908, explanation (1) which is as follows: 'The expression former suit' shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.' The date of the institution of a suit is, therefore, immaterial for the operation of the rule of res judicata Mr. Govind Prasad, who appears on behalf of the respondent, however, contends that the decision of the Rent Court in the suit of the lessees cannot be res judicata in the present suit because in the present suit an appeal lay to the District Judge whereas an appeal in the other Suit lay to the Com-missioner. He has cited no authority in support of his contention. In our judgment the fact that an appeal lay to the Civil Court from the decision of the Re-Venue Court in one of the suits, and to the Commissioner in the other cannot affect the question of res judicata. It is the competency of the Court of first instance to entertain the two suits which regulates the application of the rule of res judicata. The Court of first instance which was the Revenue Court was competent to entertain both the suits which were tried by it and to adjudicate on the issues which arose in those suits. It held in one suit on the issue whether the lessees, present appellants, were or were not in possession during the period for which compensation was claimed that they were not in possession. That decision having become final the same issue could not be re-opened in the other suit which the same Court was also competent to try. That the application of the rule of res judicata is irrespective of any provisions as to the light of appeal from the decision of the Court which decided the issue is manifest from the second explanation to Section 11 of the new Code of Civil Procedure, which settles conflicting authorities on the point. We are, therefore, of opinion that as the issue which arises in this suit as to the possession of the appellants during the period for which arrears of rent are claimed was determined by a Court of competent jurisdiction and was decided against the plaintiff, the matter has become res judicata and the same question could not be raised and re-considered in the present suit. The learned Judge was, therefore, wrong in overruling the plea of res judicata. We allow the appeal and setting aside the decree of the lower appellate Court restore that of the Court of first instance with costs in all Courts including in this Court fees on the higher scale.