Subramania Aiyar, J.
1. The plaintiff sues for the recovery of the amount alleged to have been paid by him on account of the Government assessment on certain lands belonging, to the defendant. The material allegations of the parties either in this suit or in the previous one to be presently referred to, are not very clearly stated. So far as 1 have been able to ascertain they are as follow.
2. The case for the plaintiff is that as the land stands registered in his name, he was compelled to pay the assessment, the defendant having omitted to pay it. The defendant denied that the registry was in the name of the plaintiff and contended that he was the pattadar and that he had paid the assessment for the whole of the land in his holding. Assuming that the plaintiff was entitled to maintain a suit on the facts alleged by him, the issues for determination were, (1) was the registry for the land in the plaintiff's name (2) was he compelled to pay and did he pay the assessment ?
3. In Small Cause Suit No. 68 of 1888, between these parties for the recovery of certain amounts similarly collected from the plaintiff on account of the assessment on the land in question, for a prior period, the contention of the defendant as to the registry was the same as that now set up by him. It was negatived and a decree was given to the plaintiff for the amount claimed. In the court below this decision was set up as conclusive in the present suit. But the District Munsif rejected the contention, found the facts in favour of the defendant and dismissed the suit. Mr. Sankara Nair for the plaintiff argues that the decision of the Munsif as to res judicata is wrong.
4. In Vencatachalapati v. Krishna I. L. R. 13 M 287, quoted by Mr. Sankara Nair it was ruled that the decision of a Deputy Collector in a previous suit under Section 9 of the Rent Recovery Act as to the question of tenancy was binding on the parties in subsequent litigation in the same court. In that case the learned Chief Justice and Wilkinson J. laid stress on the doctrine that everything that is to have the authority of res judicata ought to be subject to appeal and distinguished the case they had to decide from the Full
5. Bench ruling in Manappa Mudali v. S.T. McCarthy I.L.R. 3 M 192, on the ground, as I understand it, that the Deputy Collector's decision was one open to appeal. I think that the Full Bench ruling just referred to governs this case. It was there held that the finding on a question of title in a suit of the nature cognizable in Courts of Small Causes, though necessary for the determination of that suit, must for the purpose of res judicata in subsequent litigation be treated as one but incidentally given. The same view has been more than once taken by West and Nanabhai Harridas JJ. in Anusuyabai v. Sakharam Pandurang I. L. R. 7 B 464, which was referred to with approval in the case cited by Mr. Sankara Nair, West J. said, 'The decision could not be appealed against, and, therefore, on the incidental question was not final. The same principle applies where an appeal is excluded by the decree : a point is not finally decided against any party who is not allowed the opportunity of questioning the decision, with the exception of the particular points as in small causes, to the judgment on which a special finality is given by Statute,' I. L. R. 7 B 467). In Bholabhai v. Adesang, I. L. R. 9 B. 75, the matter is again adverted to and a principle is suggested for accepting what at first seems a little anomalous, namely, treating a finding which was admittedly necessary for the determination of the suit in which it was given as only incidental and therefore not final in subsequent proceedings. West J. observes, 'In the continental countries of Europe in which, as in India, an appeal is generally admitted as a part of the regular procedure, the rule is that no matter decided by a lower court in which an appeal is excluded can be res judicata for any other case, either in the same or any other court ; that which has been decided incidentally, but for its purpose finally, is regarded merely as an exceptional element of the judgment in such case, not as the establishment of a principle which may extend to other cases and other courts ; the decision in fact is construed in relation to future cases as an exceptional law or section is construed, that is, as not admitting of any extension by inference on account of its admittedly special and singular character,' I. L. E.. 9 B 80. There is also an expression of opinion to the same effect by Jackson J. on which however much reliance cannot be placed as he did not wish to lay it down positively, Poran Sookh Chunder v. Parbutty Dossee I. L R. 3 C. 612.
6. I think the District Munsif has arrived at a correct conclusion and I dismiss the petition with costs.