Bhandari C. J.
1. This appeal under Clause 10 of the Letters Patent raises a question whether the suit Out of which the appeal has arisen is barred by the rule of res Judicata.
2. On 15-3-1941 certain proprietors of village Narwana of the Kangra District obtained a decree for a declaration that they are entitled to graze their cattle in the shamilat of Tika Chak Bandhar and Chak Ban Chandar Bhan. This decree was upheld by the District Judge and later by a learned Judge of the High Court at Lahore
3. This decision does not appear to have settled the disputes between the parties, for on 28-8-1948 certain other proprietors of the village (defendants in the earlier case) brought a suit for the recovery of a sum of Rs. 190/- on account of the damages sustained by them as the defendants (plaintiffs in the earlier case) had allowed their cattle to graze in certain areas of the shamilat land surrounding their huts which were reserved, exclusively for the me of the plaintiffs.
The trial Court came to the conclusion that as the plaintiffs' right to graze in the entire shamilat land has been established by the earlier judgment, the plaintiffs' claim for damages was barred by the doctrine of res judicata.
The order of the trial Court was upheld by the District Judge, but a learned Judge of this Court before whom the appeal came up for hearing allowed the appeal and remanded the case for decision on its merits. In the course of his order the learned Judge observed as follows:
'Considering then that the plaintiffs in the former suit did not claim that they had the right to graze their cattle in the areas of land round the huts built by the proprietors in the shamilat deh to tie their cattle at night time the matter arising in Civil Suit No. 258 of 1948 was no answer to the claim made in the previous suit.
As stated in the preceding paragraph the pith and substance of the claim in the former suit was that the plaintiffs of that suit were entitled to enjoy in future the rights of grazing cattle in the shamilat deh as before. In plain English the case of the plaintiffs in the former suit was that the parties to that suit possessed a right to graze their cattle in the shamilat den.
In the present suit the plaintiffs have set up the existence of custom in village Narwana where-under they claim the exclusive use of arose round the huts built by them in the shamilat deh. Clearly, the matter arising in the suit out of which this appeal has arisen cannot be deemed to have been directly and substantially in issue in the former suit.'
4. The defendants in the present case, plaintiffs in the earlier, have preferred this appeal under Clause 10 of the Letters Patent, it is a well-known principle of law that a judicial determination of a Court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties and that the same question cannot be raised again between the same parties in a different form.
A judgment is conclusive not only in reference to matters actually or formally contested but as to all other matters within the knowledge of the parties which might have been set up as ground for attack or defence in the first suit.
If, therefore, a plaintiff in an action puts forward a claim which the defendant does not choose to controvert, the defendant is concluded as to the existence thereof by the judgment delivered in the case, and all questions in controversy arising in the case are set at resf for ever.
As pointed out by an American Judge, a defendant cannot be permitted to split his defences and present them by piecemeal in successive actions growing out of the same transaction: Columb V. Webster Manufacturing Co., 43 LRA 195 (A); Ruekman v. Union R. Co., 69 LRA 480 (B).
5. A perusal of the plaint in the earlier case makes it quite clear that the matter in controversy in the second suit was directly and substantially in issue in the earlier litigation. The plaintiffs-appellants stated quite clearly in that case that they were proprietors of the village, that in their capacity as such they were entitled to all the rights and privileges pertaining to the shamilat of the said village including the right to graze their cattle in the said shamilat that the defendants respondents had been unlawfully interfering with the admitted rights of the appellants and consequently that the appellants were entitled to a declaration that the appellants had a right to graze their cattle in the shamilat of the village.
The respondents denied the status of the appellants as proprietors in the village and their right to graze their cattle in the shamilat in question, but they failed to allege that the appellants had no right to graze their cattle in the areas surrounding the huts of the respondents.
A perusal of the pleadings of the parties, the issues which were framed and the findings which were recorded shows that the points which were directly and substantially in issue in the earlier litigation were whether the plaintiffs were proprietors in the village and whether they had a right to graze their cattle in the shamilat of the village,
6. Now what exactly were the issues which arose between the parties in the second case? The respondents in their capacity as proprietors stated that they had built small huts in the shamilat for keeping their cattle at night, that according to a custom by which they were regulated they had an exclusive right of grazing their cattle in the areas surrounding those huts and that the appellants had no right to graze their cattle in the said areas.
The appellants had put forward a specific claim in the first suit that they had a right to graze their cattle on the entire shamilat and had expressly invited the Court's decision upon the said assertion. It was open to the respondents to defeat the said claim by stating that although the appellants had a right to graze their cattle in the shamilat they had no right to graze their cattle in the portion of the shamilat surrounding the huts of the respondents which had been specially reserved for the use of the respondents.
This was a defence which the respondents could have raised in the prior litigation and this was a defence which could have been considered and determined in the said litigation. As the respondents failed to set up this defence, they are concluded as to the existence thereof by the Judgment delivered in the case.
7. Nor can it be said that the subject-matter in the two litigations is not the same and consequently that the rule of res judicata cannot be held to apply. The claim in the first action comprised the entire area of the shamilat, while the claim in the second action relates only to a portion of the said area.
The claim in the second action is to the claim in the first action as a part is to the whole and the judgment which had accepted the claim of the appellants to the whole was equally applicable to the part.
8. For these reasons I would accept the appeal, set aside the order of the learned singleJudge and restore that of the trial Court. Theappellants will be entitled to costs here and below.
9. I agree.