1. This is an appeal against a judgment and decree of District Judge Dulat, dated 21-11-1940, dismissing an appeal' against a judgment and decree of the trial Court.
2. Tn November 1928 Jangi adopted his daugh-ter's son Duni and on 23-6-1933, he made a Will in favour of Duni. On 18-8-1933, he died and the land was mutated in favour of the collaterals. On 23-4-1934, Dunt brought a suit for a declaration alleging that he was the adopted son and also that there was a Will in his favour.' The defence was that there was no adoption in fact nor could Duni be adopted and that the property was ancestral. The trial Court framed issues of which the relevant ones are:
2. Whether Jangi deceased adopted the plaintiff and the plaintiff was his daughter's son?
3. In case Issue No. 2 be decided in the affirmative, is the adoption valid, according to the custom?
4. Whether Jangi deceased made any will in favour of the plaintiff and whether it is valid?
5. Whether the property in suit is ancestral 'qua'the defendants?
The Court held in favour of the factum of adoption and also that the adoption was valid, that there was a Will in favour of Duni, that the land was non-ancestral, and towards the end of the judgment the Court said 'even if the property in suit be held to be ancestral the will in favour of an adopted son is valid.' An appeal was taken to the Senior Subordinate Judge and ground No. 5 of the appeal was that the land, in dispute was ancestral. The Senior Subordinate Judge upheld the findings of the trial Court. On 23-8-1943, Dtini died leaving his real mother Rodi as his heir.
3. On 24-5-1944, the plaintiffs who are the near collaterals of Jangi brought a suit for possession alleging (1) 'that the land, is ancestral and (2) that on the death of Duni without leaving any issue or a widow the land reverte to the collaterals. The defence was that the decision in the previous suit operated as 'res judicata' and that the plaintiffs were not the collaterals of Jangi. The trial Court held that the suit was barred by Section 11, Civil P.O. and the plaintiffs could not prove that the land was ancestral. An appeal was taken to the District Judge who upheld the judgment of the trial Court on the question of 'res judicata.'
4. In the second appeal, the only question is one of 'res judicata', and it is submitted that in the previous case it was not necessary to decide the question of the ancestral nature of the land because the question of adoption is not dependent upon the nature of the land and reliance was placed on a judgment of their Lordships of the Privy Council in 'Asrar Ahmed v. Durgah Commmittee, Ajmer' AIR 1947 P C 1, where Lord Simonds said at p. 6:
'In the year 1880 .... two persons, the Presidentand another member of the purgah Committee...brought a suit against Amir Ali in the Courtof the Assistant Commissioner, Ajmer, prayingthat he might be dismissed from his office onaccount of incompetency, dishonesty, negligenceof duty and disobedience of orders. This, itmay be observed, is relief which it is proper fora competent Court to grant under the Act of1863 if the circumstances justify it. But it isdifficult to Bee how under the Act the questionof a hereditary right could properly be raised. Nordid the plaintiffs raise it. But in his defenceAmir Ali raised the question again.'The trial Court had considered Amir Ali not tobe a fit person to remain in charge of the officeand directed his removal. His Lordship went onto say:'So far as these decisions determined the questionof hereditary right, they were in their Lordships'opinion clearly wrong. They are, however, relied on by the appellant as supporting the pleathat the matter in dispute between the partiesto the present suit and appeal is 'res judicata.'
At p. 8 his Lordship said:
'It is true that at his instance the question of hereditary right was brought into issue, and was indeed decided in his favour, but it was incidental to and not the substance of the suit, and, though their Lordships would willingly uphold the plea whenever the circumstances justify it, they cannot think that in that case the question was a direct and substantial issue, particularly when it was at least doubtful whether such an issue could have been raised under the Act of 1863 under the authority of which the suit was brought.'
Counsel next relied on 'Man Mohan Das v. 'Shib Chandra Saha', AIR 1931 Cal 353, where it was held that a judgment is conclusive only in respect of matters which are directly in issue and not those which are brought incidentally during the trial. A fact cannot be in issue directly when the judgment can be correct whether the fact exists or not. Counsel also relied on 'Daudbhai Allibhai v. Dava Rama, 43 Bom 568, Where Pratt, J., said as follows at p. 571:
''The question whether an issue was substantially raised and decided is a matter of fact to be decided upon the circumstances of each particular case: See 'Girdhar Manordas v. Daya-Bhai Kala-Bhaf, 8 Bom 174 at p. 180 (PB). And although no rule of general application can be laid down, this proposition is well established that when a decree of the Court is not based upon a finding but was made in spite of it, that finding cannot be 'res judicata.'
Reliance was also placed on 'Mehan Singh v. Kehr Singh', AIR 1923 Lah 523, Where a similar rule was laid down.
5. It was then submitted that because the decision of the issue did not support the ultimate decision of the suit it did not amount to 'res judicata', and reliance was placed on 'Hafiz Mohammad v. Firm Swartup Chand Hukam Chand', AIR 1942 Cal 1. where it was held that where several issues have been framed and decision on each issue which supports the ultimate decision in the case must be regarded as 'res judicata' between the parties to the suit. 'Sukhdeo Singh v. Mathra Singh', AIR 1933 Lah 412, was next reled on. Reference was then made to p. 41 of Mulla's Code of Civil procedure where it is said:
'To constitute a matter 'res judicata' it is necessary that it must be in issue directly and substantially' in the suit under trial, and that it must have been in issue also 'directly and substantially', as distinguished from 'collaterally or incidentally', in a former suit.'
The argument of Mr. Daya Krishan Mahajan was that in the previous suit the question to be decided was one of adoption and whether property was ancestral or not it made no difference because the adopted son would be entitled to succeed to the property whether it was ancestral or non-ancestral, with this submission I am unable to agree. Two questions arise whenever an adoption is made under custom; CD whether in fact there was an adoption and (2) whether the adoption was valid in accordance with custom. The first question is not hit by the nature of the property, but in order to decide the question whether the adoption is valid or not, the question of the ancestral nature of the property is a relevant consideration. Tinder Section 7 of the Punjab Custom (Power to Contest) Act, 1920, it is provided:
'Notwithstanding anything to the contrary contained in Section 5, Punjab Laws Act, 1872, no person shall contest any alienation of non-ancestral immovable property or any appointment of an heir to such property on the ground that such alienation or appointment is contrary to custom.'
If the property is not ancestral, the validity of the adoption cannot be challenged and that was one of the questions which had been raised in the previous suit, i.e., whether Duni could be validlyadopted under custom, and in order to determine that it was necessary to decide the question of the ancestral nature of the property. Not only this the defendant definitely raised the question of the ancestral nature of the land in that suit not only in the trial Court but also in the appellate Court.
6. Mr. Nayar relied on a judgment of their Lordships of the Privy Council in 'Midnapur Zamindary Co. Ltd. v. Narebh Narayan', 51 Ind App 293 (PC), where it was held that an issue is 'res judicata' where the judgment of an appellate Court shows that the issue was treated as material, and was decided, although the decree made merely affirms the decree of the lower Court which did not deal with the issue. The judgment of the High Court (Woodroffe and Walmsley. JJ.> was approved of by their Lordships of the Privy Council and they quoted it 'in extenso.' At p. 302 there is the following passage:
'But we must see first whether this Court ad-Judged otherwise, that is, whether this Court having the question before its mind decided that the issue did arise. If so, that decision would be as much 'res judicata' as the final determination of the issue on the merits. If we are of opinion that the Court did so decide, we are not concerned to see whether it did so rightly or not and indeed cannot do so.'
Lower down on the same page there is a passage which is as follows:
'He says that that was part of the defence which it was necessary to consider. He then points out that the First Court did not consider the question of Jotedari right necessary to be determined, and expressly refers to the ground of appeal that the First Court ought to have determined the Question of tenancy right, and held that the possession to which the then plaintiff was entitled was subject to the tenancy right of the present appellants. It is quite clear from the above that the then defendants' case was present to the minds of the Court. The learned Judge then proceeded to decide it and held that there was no jote right. If the learned judges had thought the issue unnecessary, they would presumably have said so and not decided it. But they did decide it ..... Weought not, we think, to assume that the judges discussed a question which was irrelevant to the case, and then granted no relief in respect of it; but rather that as they had discussed and negatived the alleged tenancy right in the judgment they intended to and did, give a decree which should give effect to these findings.'
This case was followed by Dalip Singh, J., in 'Sri Ram v. Umrao Singh', AIR 1930 Lah 690, where the learned Judge said that it depends upon the facts and circumstances of each case whether an issue which logically may be unnecessary for the decision of a case is or is not sufficient to constitute 'res judicata' in the legal sense. As pointed out by the Privy Council in 'Midnapur Zamindary Co. Ltd. v. Naresh Narayan', 51 Ind App 293 (PC), it is for the Court which deckles the original suit to decide what was necessary to decide for the purposes of that suit. This case was approved of in a Bench decision of the Lahore High Court in 'Wadhava Singh v. Ladha Singh', AIR 1931 Lah 335, where the headnote is as follows:
'If there are two issues which had been determined in a suit and the decision of either of these issues was potent enough to defeat the plaintiff's whole suit, then it is open to the defendant in a subsequent suit to rely upon the previous decision on the one or the other of the issues and to ask the Court to throw out the plaintiff's case as barred by 'res judicata.'
7. I may here refer to the last portion of Exhibit D. 6 where the learned trial Court and held that even if the property was ancestral, the Will in favour of an adopted son would be valid. That was where he was deciding the question of the validity of the Will. It is true that if once it is decided that the adoption is valid, the nature of the property would not affect the validity of the Will in favour of such an adopted son.
8. A consideration of the circumstances of the case which was decided previously and the pleadings of the parties and the issues that were raised lead me to the conclusion that the decision on the Question of the nature of the property in the previous case operates as 'res Judicata.' As I have said, the defendants definitely pleaded the question of the validity of the Will and also in lact an adjudication on the question of the ancestral nature of the property because if the property was non-ancestral, they could not attack the validity of the adoption and would have had to confine themselves to the question of factum of adoption. The case as it was then being fought necessarily raised the question of the nature of the land in dispute. Unless the land was ancestral, they could not attack the validity of the adoption and therefore they could not attack the validity of the Will.
9. Mr. Mahajan has relied on the judgment of their Lordships of the Privy Council in 'Asrar Ahmed v. Durgah Committee Ajmer', AIR 1947 PC 1. No doubt there the question of the hereditary nature of the right could not be decided on the pleadings of the parties and this issue would be incidental even though the defendants had invited a decision, on it, but in the present case the defendants had to invite an adjudication on this point in order to succeed, as I have said above. It was then submitted by Mr. Mahajan that the previous litigation was on a different cause of action, and, therefore, the issue was not 'res judicata'. He has relied on a judgment of Din Mohammad. J., in 'Mt. Alam Khatun v. Hayat Khan', AIR 1938 Lah 492. But the facts of that case were different and do not apply to this case. Mr. Mahajan also referred, in this connection to 'Qasim Ali v. Punnoulal', AIR 1930 Lah '284 (1) where it was held that the titles of reversioner's and of owners are entirely different in a suit as reversioners' title does not operate as 'res judicata' to a suit as an owner. This case again is not of much assistance.
10. The causes of action in the two suits -- in the previous one and the present one are the same: the ground of attack may be different. In both cases the question to be decided is whether the plaintiffs have a better title to succeed to the estate of Jangi. In 'Sardaran v. Bhiv Lal' ILR (1944) Lah 568 it was held that where a right, claimed in both the suits is the same, the subsequent suit will be barred by 'res judicata' though the right in the subsequent suit is sought to be established on the ground different from that in the first. In the previous case the plaintiffs want-ed to establish their superior right to succeed on the ground that the property was ancestral and that no valid adoption could be made, nor a will In the present case the collaterals had to establish that the land was ancestral and because the adopted son had died issueless and without a widow, there was a reversion in their favour. The ground of attack is therefore different; the right is thesame. The rule laid down in the Full Bench case therefore applies.
11. I therefore hold that the findings in the previous suit operate as 'res judicata' and thereforeit having been decided in the previous suit thatthe land was non-ancestral, that question cannotbe raised again, and I therefore dismiss the appealand affirm the decree of the Courts below withcosts. I certify that this is a fit case for appeal under the Letters Patent.