Innes and Kernan, JJ.
1. The issue in the former suit was whether the whole of the lands were held under the letting alleged in the plaint. The letting was a letting to the first defendant in the former suit, and the other defendants were sued as sub-tenants under him.
2. It was held, as regards some of the land in the possession of the third defendant in that suit who is the second defendant in this, that the paramba--the object of the present suit--was not held under the letting alleged in the plaint, and the suit was dismissed in regard to this property.
3. The present second defendant had in that suit set up the present first defendant as the jenmi and the person under whom he held, but no issue was raised on that question, and the Court of First Instance expressly declined to discuss it. All that was decided was that the present second defendant did not hold the property now in dispute under the first defendant in that suit who was alleged to be the lessee of the plaintiff.
4. In the present suit no issue was settled, but the question between plaintiff and first defendant is the question of title, and second defendant is included as holding or professing to hold under first defendant.
5. There is, therefore, no identity of the substantial issue in this suit with that in the former suit; nor, as regards plaintiff and first defendant, is it a suit between the same parties.
6. The matter, therefore, is not a matter in issue, which, having been directly and substantially in issue in a former suit between the same parties or in a former suit between parties under whom the present parties or any of them claim, was heard and finally decided by the Court.
7. Neither under the ordinarily recognized principles upon which the doctrine of res judicata proceeds, nor under the somewhat more comprehensive rules of the Civil Procedure Code, could the question be properly held to be res judicata as between plaintiff and first defendant.
8. The second defendant is a necessary party to the suit, as he is in possession under first defendant.
9. We must reverse the decrees of the Courts below and remand the case to the Court of First Instance for retrial. The appeal is allowed with costs throughout.