1. The plaintiffIs the appellant; and he filed an earlier suit, O. S. 202 of 1959, claiming a right of way along the passage marked 'S' in the commissioner's plan, Ex. Cl. One of the issues in that suit was 'whether there was a mamool pathway leading to R. S. No. 616/10 running between R. S. Nos. 616/5 and 6. 4 and 7 as alleged by the defendants'. (The passage is marked in Ex. Cl as 'F2'). That issue was raised at the instance of the respondents, the defendants; and on that issue, a finding was recorded that the mamool passage marked 'F2' was the pathway used by the appellant to come from his property, R. S. No. 616/10 on the south, to his property, R. S. No. 616/6 on the north. The short question for consideration in the second appeal is whether the said decision is res judicata.
2. On the basis of the aforesaid finding on the said issue and also on the finding that there was no mamool pathway along the passage marked 'S', the previous suit was dismissed; and the appellant did not even attempt an appeal against the decision. On the other hand, he filed the present suit for injunction that the passage along 'F2' should be opened and that the appellant's use of the passage should not be interfered with. In this suit, one of the issues raised was whether the finding on the issue in the earlier suit mentioned hereinbefore was res judicata : and this question the Munsif answered in the affirmative, while the Subordinate Judge answered in the negative. Since a learned Judge of this Courtfelt that this was an important question, the case has been referred to a Division Bench.
3. After hearing both the counsel and seeing a few decisions on the point, we have come to the conclusion that the decision of the Subordinate Judge is erroneous and that the case is practically on all fours with a decision of the Supreme Court which we shall refer to by and by. We shall first refer to the pleadings in the earlier case, the evidence therein, etc., which have a bearing on the question.
4. The appellant claimed in the earlier suit that he had a right of passage along 'S', while the first respondent filed a written statement in which this right of passage was denied. He pleaded, in addition, that the passage which was available to the appellant was the passage marked 'F2' and it was on this plea that the issue was raised. Ex. B-4 is the written statement filed by the first respondent; and paragraph 13 thereof is the relevant paragraph. Paragraph 13 reads,
'This defendant emphatically denies that there is the pathway running along the field bund lying in between R. S. No. 616/9 on the one hand and R. S. Nos. 616/8 and 616/6 on the other. (The reference is to passage 'S'.) Much less is it a mamool pathway as alleged in the plaint. No pathway existed along that since ancient times ..... On theother hand, he begs to submit, the pathway that connected R. S. No. 616/6 to the house is R. S. No. 616/10 runs along the field bund lying between R. S. Nos. 616/6 and 616/7 on the one hand, and R. S. Nos. 616/5 and 616/4 and 616/3B on the other. (The reference is to 'F2'.) .....'The first respondent was examined as DW. 1 in the earlier suit; and his deposition is marked in this suit as Ex. A1. Therein he has stated
'The usual pathway for the plaintiff was on the western side of R. S. No. 616/6. That pathway was between the tank in R. S. No. 616/5 and the fields in R. S. No. 616/6. ............ That is like alane.'
The first respondent has been examined as D. W. 1 in the present suit as well; and he has admitted that what he stated in the earlier suit, both in the written statement and in the box, is correct. Therefore, there cannot be any doubt that the suggestion of the first respondent in the earlier suit was that the right of passage available to the appellant was not along 'S' but along 'F2'. Ex. A-2 is the Judgment in that suit; and the finding of the Munsif on this issue was
'I am inclined to accept the evidence of DW. 1 that there has been a mamool pathway to come from R. S. 616/6 to R. S.No. 616/10 along the western boundary of R. S. No. 616/6 and R. S. No. 616/7 as alleged by the defendants. Issue found accordingly.'
5. The contention urged by thecounsel of the respondents is that this finding will not come within the mischief of the language of Section 11 of the Civil Procedure Code. The only question we need consider in this connection is whether the facts and circumstances of the earlier litigation will make us conclude that the finding mentioned above, that there was a mamool pathway along 'F2', was on a question directly or substantially in issue in the earlier suit; in other words, whether there was a pathway along 'F2' was directly or substantially in issue in the earlier suit. (Of course, whether there is a right of way along 'F2' is directly in issue in the present litigation.) If we come to the conclusion that the finding mentioned above was on a question directly or at least substantially in issue between the parties in the earlier litigation also, then we have to hold that the finding is res judicata in the present case.
6. Though a few decisions have been cited before us, we refer only to two of them. The first decision is the recent decision of the Supreme Court in Gangappa Gurupadappa Gugwad v. Rachawwa, AIR 1971 SC 442. The Supreme Court has considered in this case its earlier decision in Vithal Yeshwant Jather v. Shikandarkhan Hakhtumkhan Sardesai, AIR 1963 SC 385, wherein the Supreme Court has held that if the final decision in any matter at issue between the parties is based by a court on its decisions on more than one point, each of which by itself would be sufficient for the ultimate decision, the decision on each of the points operates as res judicata between the parties. This proposition laid down by the Supreme Court in the earlier decision has been followed in this latest ruling. Our attention has also been drawn to another decision of the Supreme Court, viz., Isher Singh v. Sarwan Singh. AIR 1965 SC 948 which, we feel, is a case almost on all fours with the case before us. Therefore, we shall state the facts of that decision,
7. A person by name Jati died childless; and the appellant before the Supreme Court took possession of the properties left by Jati claiming that there was an oral will in his favour by Jati. The respondents before the Supreme Court applied to the revenue authorities for mutation in their names and also obtained favourable orders. Since the mutation proceedings went against the appellant, he filed a suit against the respondents for declaration of his title anda permanent Injunction that the respondents should not interfere with his possession. He alleged in the plaint that the respondents were not the reversioners of Jati and were not even related to him. The respondents filed a written statement, wherein they denied the existenca of the oral will and also claimed that they were the reversioners of Jati Issues were framed on both questions, viz., whether there was an oral will and whether the respondents were reversioners of Jati. And the court held against the genuineness of the oral will, but held that the respondents were reversioners of Jati. As a consequence of these finding, the suit of the appellant was dismissed : however, the appellant continued to be in possession of the properties. Then came the next suit, wherein the respondents contended that the finding in the earlier suit that they were the reversioners of Jati was res judicata s and the Supreme Court upheld the contention.
8. Ayyangar. J. wrote the Judgment of the Bench; and the learned Judge has observed that the question raised in the appeal was not so much as to the scope of the plea of res judicata and the law bearing upon it, but merely the application of well-settled principles to the facts of the case. His Lordship has also observed;
'Undoubtedly, the question whether a matter is 'directly and substantially in Issue' would depend upon whether a decision on such an issue, would materially affect the decision of the suit.'
The learned Judge, after examining the recitals in the plaint, has observed further that the plea regarding the relationship of the respondents to Jati was 'not an irrelevant matter which accidentally got into the suit but did possess some significance in relation to the relief to be granted'. And Ayyangar J. has concluded that the position in the former suit was that the heirship of the respondents to Jati was in terms raised by the pleadings, that an issue was framed in regard to it by the trial Judge, that evidence was led by the parties on that point directed towards that issue, that a finding was recorded on it by the court and that, on a proper construction of the pleadings, it would have been necessary to decide the issue in order to properly and completely decide all the points arising in the case to grant relief to the plaintiff.
9. We do not think we need refer to any other decision, though a few more have been cited before us.
10. In this case, all the ingredients pointed out by Ayyangar. J., existed in the earlier suit, O. S. No. 202 of 1959, for example, the plea that the passage available to the appellant was along 'F2', was raised by the respondents, an issue was raised on the question, evidence was adduced on the point, a finding was recorded by the trial court, and, on the construction of the written statement of the respondents, it was necessary for the court to decide the issue in order to properly and completely decide all the points arising in the case so as to refuse relief to the appellant as contended by the respondents. In fact, what was done in that case was that the plea of the respondents that the passage available to the appellant was along 'F2' was accepted and a finding to that effect was recorded on the relevant issue : and that finding was also material for deciding the controversy between the parties, viz., whether the appellant was entitled to a right of way along 'S'. In the language of Ayyangar, J., the existence or otherwise of a passage along 'F2' was 'not an irrelevant matter which accidentally got into the suit but did possess some significance in relation to the relief to be granted'. The respondents raised that plea and invited a decision on that question expecting that, if the decision was in their favour, the appellant's suit would be dismissed. And that was exactly what happened too. The said decision in the earlier suit is, therefore, res judicata in the present suit.
11. This, in our opinion, is sufficient to dispose of the second appeal. But, there is another way of looking at the question. The parties to this litigation all belonged originally to one family; and there was a partition in the family under Ex. A-3 in December 1949. There is a recital in this document that all existing pathways will be protected; and that none of the parties will object to the use of such pathways. However, the document does not specify any of the existing pathways--only states generally that none of the existing pathways should be interfered with. D. W. 1 (the first respondent) has admitted that, before partition, the parties used to go to R. S. No. 616/6 through a pathway that existed in R. S. No. 616/11, passing by the western side of R. S. No. 616/10 and turning northwards along the field bund of R. S. No. 616/7. (The reference in the latter portion is to the passage 'F2'). From this it is clear that the passage marked 'F2' was in existence even at the time of the partition under Ex. A-3: and by a provision in that document, to which reference has already been made, such existing passages were not to be interfered with. Therefore, it cannot be argued (the counsel of the respondents has attempted such an argument) that the appellant has failed to establish user, as of right, of the passage marked 'F2' for the statutory period of 20 years. If under Ex. A-3. apassage then existing was protected, and if. as is conceded by the first respondent as D. W. 1. that the passage 'F2' existed at the time of partition, user, as of right, for the statutory period of 20 years need not be established. This is a right of passage granted to the appellant under the partition, or, to be more precise, a right of passage along a pathway already existing having been recognised and protected by the deed of partition. In this view also, the second appeal has to be allowed.
12. The second appeal is allowed, the decision of the lower appellate Court is set aside and the decision of the Munsif is restored with costs of the appellant throughout.