1. We have come to the conclusion that this appeal must be allowed. There is no question about the parties in this suit being the same as in the previous suit. There is also no question about the relief claimed in this suit being identical with the relief claimed in the former suit. That is clearly shown by the reliefs shown in parallel columns in the judgment of the Munsif. In a suit of this nature it was necessary for the plaintiffs, first, more as a matter of form than anything else, to prove that the defendant was in possession; further that she was a widow claiming to be in possession by virtue of the dower debt of her deceased husband, and that the plaintiffs were residuary heirs of the deceased husband. It is clear that at the trial of the first suit only one point was decided, namely, that the plaintiffs had failed to prove that the widow was in possession, and on that ground the suit was dismissed. It may often happen that where as, in these cases, there are three or four issues which the plaintiff has to establish, the Judge may choose to decide all of them, or only some of them, or only one of thorn, even though in his opinion his decision must be fatal to the plaintiff on all of them. In that sense it may be said not to be necessary for him to decide the other issues besides the first, but it may also be said not to be unnecessary, and certainly not incompetent, to decide the other issues. It so happens that in this case there was an appeal, and it so happens also that the appeal, in the former suit was heard by the Judge who has decided this case also in appeal. While agreeing in his disposal of the appeal in the former suit with the view taken by the trial Court, the learned Judge in appeal went on to find that the plaintiffs had also failed to prove that they were the heirs, and also that they had failed to prove that the property belonged to the deceased. No doubt there are cases in which it appears, and must be held, that what one may call the issues on the merits did not arise, or were unnecessary to decide, because the suit has been disposed of on some fundamental preliminary point which puts the plaintiff out of Courts. But the true view, as it seems to me, of a proceeding of that nature is that the issues on the merits do not really arise at all, and that any expression of opinion about them is mere dictum, and the statute is satisfied by holding that the issues upon which these dicta have been uttered were not
directly and substantially in issue in the former suit.
In our opinion that cannot be said of the present case. There is nothing in the statute about what is necessary or unnecessary to decide. It is undesirable to import into a section, when the Court's duty is to apply the language of the section to the facts the case before it, any expression which is not to be found there and the question whether an issue was or was not necessary in a former suit is only a test, and not a statutory provision, to enable the Court to decide what the statute does require, namely whether the issue was directly and substantially in issue. In these cases to which I have referred, it may be said that having come to the conclusion that the issue in controversy was not necessary, the Court may go on to hold as a consequence of that, that it was not directly and substantially in issue. But in this particular case the learned Judge had found, and it is a finding of fact, which having been arrived at by an appellate Court is not open to review in this Court, that he decided as an issue, which was undoubtedly relevant, that the plaintiffs had failed to prove the two matters which are sought now to be raised in this suit. That being so, it seems to me quite clear that the issue now in controversy, namely as to whether the plaintiff's were the heirs of Qamaruddin, was directly and substantially in issue in the former suit, and was decided adversely to the plaintiffs by a competent Court of appeal which disposed of the matter. I think the same result is reached by applying Expl. 5, namely that any relief and the issue now in controversy would be part of the relief in the former suit which is not expressly granted by the decree in the former suit is deemed to have been refused. I, therefore, come to the conclusion that this issue, which is now sought to be determined in this suit, was directly and substantially in issue in the former suit and cannot be raised again, having regard to the provisions of Section 11.
2. The appeal must, therefore, be allowed and the suit dismissed.
3. I entirely agree with my learned brother that the appeal must be allowed and the suit dismissed as barred by the principle of res judicata.
4. The facts of the case are given clearly in the judgments of the Courts below Briefly they are these: The respondents before us brought a suit No. 446 of 1924 against the present appellant on the ground that the property in suit was the property of one Qamaruddin who had married the appellant, that the appellant did not inherit in spite of the marriage, because of the marriage not having been consummated and that the respondents were the nearest heirs to Qamaruddin. The suit was heard ex parte and was dismissed by the Court of first instance on the short ground that the present respondents had failed to prove that the present appellant was in possession of the property in suit. Evidently the evidence that was given was of the meagrest kind and did not suffice to prove the several ingredients which were necessary to establish for the success of the plaintiffs. The respondents appealed, but their appeal was dismissed. The learned appellate Judge held that the evidence not only failed to establish that the present appellant was in possession of the property but it also failed to establish several other matters including the alleged fact that the present respondents were the nearest heirs of Qamaruddin. After the suit had failed the respondents started a fresh suit out of which the present appeal has arisen.
5. The present suit is for the same property against the same party and on the same cause of action as before. The plaintiffs, however, have added certain reliefs in the present suit which were not to be found in the earlier suit. They added that if the appellant was found to be one of the heirs of Qamaruddin the plaintiffs might be given possession over 3/4ths of the property. Further, they said that if it was found that the appellant was in possession in lieu of dower the plaintiffs might be given possession on payment of the proportionate dower debt.
6. The learned Munsif who heard the present suit was of opinion that the two suits were identical and the addition of new reliefs did not improve matters. The learned appellate Judge was of opinion that so far as the first relief, viz., for possession of the entire property went, the two suits, being identical, the relief was barred as res judicata. He, however, found that so far as the relief for 3/4ths of the property or the one conditional on payment of dower debt was concerned, they wore not barred as res judicata. His reason was that the finding of the former appellate Court did not operate as res judicata on the title of the plaintiffs.
7. The learned Judge of the lower appellate Court did not quote any rulings in support of his judgment but, evidently, he had in his mind some of the cases decided by this Court and the Privy Council in which it was held that where a suit failed on several issues, for the purposes of res judicata only that issue was material and substantial which, in logical sequence, came first to be decided. These cases went to hold that the decisions on the other issues were to be regarded as unnecessary for the trial of the suit. In my opinion it is not necessary to express any opinion on the question whether in the circumstances of the present suit it was or was not necessary for the appellate Court to decide the question of title (among other matters) of the plaintiffs. In my opinion the suit fails on a much similar ground and it is this.
8. Section 11, Civil P.C. deals with the trial of a former suit and also with the trial of an issue raised in a former suit. Where only one particular issue is identical in two different suits, one filed after the other, a question would arise whether the decision on the issue arrived at in the former suit would operate or not as res judicata. But where the two suits are identical, the failure of the first suit must bar the trial of the second suit even if no issues were raised in the former suit. The principle is well known, viz., no person can be vexed twice over the same cause of action. The learned Subordinate Judge was of opinion that by the addition of the new reliefs to the suit the plaintiffs had succeeded in establishing that their second suit was based on a different cause of action. The learned Judge gave, as an illustration, the case where a former suit sought the ejectment of the defendant on the ground that he was a trespasser and it was held that he was not a trespasser but a mortgagee. In such a case a second suit for redemption has been allowed under certain circumstances. But in my opinions this case is not at all analogous to the case the learned Judge had in his mind. There is no finding anywhere that the defendant was in possession as a mortgagee. It is not a case similar to the case of Maina Bibi v. Vakil Ahmad in which it was held that the second suit by the Mahomedan heirs was not barred as res judicata. I once more emphasize the fact that the two suits are identical and so far as the plaintiffs are concerned they have come in the second suit on the self-same allegations on which they instituted the earlier suit. It was never found by any Court that the defendant was in possession in lieu of her dower and that so long as she was in possession she could not be dispossessed. It was the plaintiffs themselves who invented the suggestion that the defendant might be in possession in lieu of dower. In the circumstances, I can find no difference whatsoever between the two suits. The first suit having been heard and dismissed on the merits the second suit must be dismissed as res judicata irrespective of the question whether any particular issues are to be treated as having been decided or not. I would, as already stated, allow the appeal and dismiss the suit of the plaintiffs-respondents.