B. Mukerji, J.
1. This is a defendants' appeal arising out of a suit for arrears of rent under Section 148 of the U. P. Tenancy Act. The suit was filed by one of the co-sharers only, i.e. Hem Chandra Mukerji, against Mst. Batool Begum for recovery of arrears of rent in respect of three plots detailed in the plaint. The plaintiff alleged that the plots were the exproprietary tenancy of the defendant, who had Rot possession over the plots after the death of her husband Fida Husain, who was the original sir-holder of the plots.
2. The defendant contested the suit and one of her pleas in defence was that the suit could not be decreed, inasmuch as, an area of 83 bighas of Sir appertained to a -/5/2 share of the proprietary interest owned by her predecessor, and that as such she had acquired exproprietary rights in the village and the entire exproprietary tenancy had thereafter became her sir. She further pleaded that the suit was bad for non-joinder of all the co-sharers as required by the provisions of Section 240 of the U. P. Tenancy Act.
At a preliminary stage in the trial of the suit it was decided between the parties that the defendant was an exrtroprietary tenant in Khata No. 1 only, which comprised of 47 bighas 14 biswas, while in respect of Khatas Nos. 2 and 3 which comprised of 3 bighas 1 biswa and 5 bighas 5 biswas 12 dhurs respectively she had become a sir-holder and there-fore was not liable to pay any rent to the plaintiff The suit was dismissed by the trial court on a finding that the suit was bad for non-joinder of not only causes of action but also of necessary parties.
3. An appeal was preferred by the plaintiff and the lower appellate Court allowed the appeal and granted the plaintiff a decree for the recovery of Rs. 355/5/- as rent in respect of khata No. 1. It also allowed Rs. 39/7/- on account of interest, the total decree granted in plaintiff's favour being Rs. 394/12/-. Future and pendente life interests were allowed at 3 per cent per annum. The parties were directed to bear their own costs throughout, in proportion to their success and failure,
4. In second appeal the decree passed by the lower appellate Court has been challenged on the ground that the decree was bad having been made in the teeth of the provisions contained in Section 246 of the U. P. Tenancy Act. Section 246 is in these words:
'246. (1) Except as otherwise provided in Sub-section (3) or in Section 245, where there are two or more co-sharers in any right, title or interest, all things required or permitted to be done by the possessor of the same shall be done by them con-jointly, unless they have appointed an agent to act on behalf of all of them.
(2) Nothing in. Sub-section (1) shall affect any local usage or special contract by which a co-sharer in an undivided property is entitled to receive separately the whole or his share of the rent payable by a tenant.
(3) When one or two or more co-sharers is not entitled to sue alone and the remaining co-sharers refuse to join as plaintiffs in a suit for money recoverable by them jointly such co-sharer may sue separately for his share, joining the remaining co-sharers ns defendants.
(4) Where the tenant of a holding or the illegal transferee of such tenant is also a co-sharer in the proprietary right in such holding, nothing in this section shall require him to be joined as plaintiff in any suit or application brought or made against him as such tenant or illegal transferee under the provisions of this Act.
5. The court below came to the _ conclusion from the circumstance that the plaintiff had on previous occasions obtained decrees for arrears of rent, that there must have been an implied contract between the co-sharers under which Hem Chandra Mukerji was entitled to sue for the recovery of arrears without the necessity of having to implead the other co-sharers. It may be here stated that it was admitted on all hands that there were, other co-sharers in this Khata and that Hem Chandra Mukerji was not the sole owner of the Khata. The contention put forward on behalf of the defendant appellant by Mr. Gopi Nath was that under Sub-s. (2) of Section 246 of the U. P. Tenancy Act an implied contract was not enough to override what was provided for under Sub-section (1) of this section.
It was contended that in order to get the benefit of Sub-section (2) a plaintiff had either to establish local usage or a special contract. It was contended that a 'special contract' was something very different from an 'implied' contract. The words 'special contract' had to be given some meaning other than mere contract. It was pointed out that the words 'special contract meant the same type of contract as was understood by the phrase 'contracts in speciality'. In English Law 'contracts in speciality'' were formal contracts made under seal. Under the Indian Contract Act there was no such thing as a contract in speciality or contract under seal, but nevertheless the Indian Law did recognise that there were two types of contracts possible-- one in writing & the other oral, so that when Section 246(2) referred to special contract it must, in my opinion, refer to contracts in writing.
In English Law there were three well-recognised categories of contracts (1) contracts of record; (2) contracts under seal; and (3) simple contracts. As I have already observed contracts under seal were also referred to as contracts in speciality and these could only be made by deed. Simple contracts, however, could be entered into orally. Since in India the Contract Act did not classify contracts in the manner in which contracts were classified under the English Law, the use of the word 'special' before a contract had to be given some meaning and some significance had to be attached to the qualifying word. Iyer's Law; Lexicon has defined special contract 'as a contract in writing' under seal.
6. In 1936 the Board of Revenue appear to have interpreted the phrase 'special contracts' to mean a contract in writing. It is interesting to note here that under the Agra Tenancy Act the word 'special' was not there in Section 265, which was the 'corresponding section to the present Section 246. The word 'special' was added when the U. P. Tenancy Act, 1939 was enacted. Therefore, it was with some object that this change was made and the only obvious object appears to me to have been to require evidence of such contract in writing.
7. The court below in my opinion was not justified in holding that the bar of Section 246(1) could not arise against the plaintiff in this case. It was possible to infer an implied contract from the circumstances that, previously, some suits for arrears had been decreed in favour of Hem Chandra Mukerji suing alone but such a contract was not sufficient to save the suit.
8. Mr. Shambhu Prasad appearing on behalf of the plaintiff-respondent contended that the question as to whether or not Hem Chandra Mukerji could sue alone without the necessity of the other co-sharershaving been impleaded was res judicata betweenthe parties because of the earlier decisions in favour of Hem Chandra Mukerji. It may be pointed out that the question of res judicata was raised for the first time before me by Mr. Shambhu Prasad. It may also be pointed out that the point that Mr. Gopi Nath raised before me in Second Appeal, namely, the bar of Section 246(1) of the U. P. Tenancy Act, had been raised in the court of first instance, on behalf of the plaintiff, and no attempt to defeat that plea was made on behalf of the defendant by pleading a bar of res judicata.
9. In order to establish a plea of res judicata lit is essential to place before the court all the mate-rials on which the plea could be adequately founded. The mere reference to a decree in a suit was not enough to substantiate the plea. There was before me on the record no material, at any rate, learned counsel for the parties were unable to draw my attention to any materials on which it could legitimately be contended that the plea that was now being raised on behalf of the defendant, namely, the bar of Section 240 (f) of the U. P. Tenancy Act, could be raised in the earlier suits, for the plea of res judicata that has now been raised is that of constructive res judicata.
The mere fact that in respect of certain arrears, for certain years, for certain plots, Hem Chandra Mukerji obtained decrees, suing alone is not enough to show that he could sue for arrears alone in respect of the plots and for the years for which the suit out of which this appeal has arisen. The rule of res judicata has a limited scope. It is not a rule of such wide amplitude as Mr. Shambhu Prasad would want to make it. That the rule of res judicata is of limited scope was held in Broken Hill Proprietary Co. Ltd. v. Municipal Council of Broken Hill, 1926 AC 94. Reliance was placed by Mr. Shambhu Prasad on the decision of Bishun Das v. Laxmi Narain : AIR1949All596 , where Seth J. held that a previous decision in regard to the liability of one of the parties to the suit under an agreement operated as res judicata in a subsequent suit.
The facts of Bishun Das's case were not quite the same as the facts of the case before me. In that case Mr. Justice Seth said 'an issue in regard to the liability under the contract had been raised and decided, and therefore, there ought to be no difficulty in holding under such circumstances that the matter was directly and substantially in issue and had been decided. ' It was further contended that even an erroneous decision on a question of law operated as res judicata and that was so decided in Mobanlal v. Benoy Krishna : 4SCR377 . We, however, are not concerned in the present case with any erroneous decision on a question of law. We are really concerned, if at all, with an omission to decide a question and it is on this omission that the rule of constructive res judicata was attempted to be applied to the case.
10. The rule of constructive res judicata was really a rule of estoppel. There could be no estoppel against statute. This proposition was well established and I need refer only to a few leading cases. Suraj-mull Nagoremull v. Triton Insurance Co. Ltd. , Maritime Electric Co. Ltd. v. General Dairies Ltd. Mackintosh v. Ger-rard, 1947 AC 461, Kalidas Dhaniibhai v. State of Bombay : 1955CriLJ193 and Thakur Amar Singhji v. State of Rajasthan : 2SCR303 . There can be no doubt that the bar that was being raised against the plaintiff in this suit was a statutory bar.
11. There were yet other grounds for repelling the bar of res judicata. The question which Mr.Shambhu Prasad raised of res judicata was not open to him to be raised for the first time in Second Appeal in view of the decision in Jagadish Chandra Deo v. Gour Hari Mahato and even if the point could be raised, then, as I have indicated above, there was not sufficient material on the record to come to the conclusion that the plea of res judicata was sustainable.
12. For the reasons given above I allow thisappeal, set aside the decision of the lower appellateCourt, and dismiss the plaintiff's suit. Under thecircumstances of the case, however, I direct theparties to bear their own costs of this appeal.