1. These are series of appeals by the Plaintiff zamindar in suits brought by him against tenants to recover a cess known as Ghattuthumulu. It is not properly a cess at all as only Government and Statutory bodies can levy cesses, but is a charge claimed by him in respect of pre-anicut irrigation facilities which are no longer in existence. As pointed out by this District Judge, the High Court held that this charge is recoverable, but he has dismissed the suits on the ground that the principle of res judicata prevents the recovery. He has divided the appeals before him into five batches, the 1st four being those in which notice had gone to the respondent and the 5th batch containing appeals in which no notice had gone but were dealt with by him under Order XLI, Rule 11. It will be convenient to treat these latter with the 1st four as the appeals are before us. Out of the whole number, however, some are not yet before us and they will be indicated in the classification. Following his classification as far as possible, we devide the appeals as under; The 1st batch corresponds to his first batch and contains S.A. Nos. 1110, 1115 and 1124 together with S.A. Nos. 1119 and 1121 which are not before us. The 2nd batch contains his 2nd and 3rd batches and covers S.A. Nos. 1109 1114, 1120, 1123,1111, 1113,1116, 1117, and 1125. The third batch contains S.A. Nos. 1118 and 1108.
2. Mr. Ramesam for the respondent admits that the appellant is entitled to succeed in the 1st batch as they undoubtedly must be decided against him if his contention on the 2nd batch is sustained. He also admits that the 3rd batch must also succeed on the same principle - with the result that Second Appeals Nos. 1110, 1115, 1121, 1108 and 1118 must be allowed if we uphold his argument.
3. There remains then to consider the 2nd batch. It is urged that these are res judicata in that, the High Court in 1912 in S.A. Nos. 616 to 629 of 1908 held, on second appeal from the decision of the District Munsif in suits of 1905, that the matter was res judicata by reason of the decision of the District Munsif between the same parties in 1902. It is not denied that the decision of the High Court in 1912 does cover these cases. It is urged, first that that judgment although correct on the materials then before the High Court does not bind us in these second appeals because another judgment of the High Court in 1892 was not before it; secondly, that that judgment of the High Court in 1912 is not binding on us because it is merely on a point of law. With regard to the 1st argument it is sufficient to say that this contention was never put before the District Munsif who decided the cases now under appeal and we cannot allow it to be raised now. We must therefore confine ourselves to the 2nd question.
4. The broad proposition contended for is that a decision on a pure question of law is not res judicata. The decision of the High Court is Exhibit K and it simply says 'we accept the findings and set aside the decrees'. The issue sent down for finding was whether the parties to those second appeals and the lands, the subject of them, were the same as those dealt with b*y the District Munsif in 1902, and the finding was that the parties and the lands were the same. It is then argued on this that the question decided by the Munsif in the suits of 1902 was a pure question of law and accordingly the decision of the High Court in 1912 must have been a pure question of law too. The decision of the Munsif is Exhibit F, and the issue is as follows : 'Is the plaintiff entitled to levy on the plaint land the cess called Ghattuthumulu. (This issue includes consideration of the question whether, granting that the cess is payable by custom the plaintiff is not entitled, in the present circumstances of the parties to enforce the same). It is dealt with by the Munsif in page 53 of the printed papers and his decision is as follows:-I hold that the plaintiff's contention, that he is entitled by the sheer force of custom to a perpetual payment of the plaint cess by the inamdars without any objection on his part to maintain any of the old irrigation works in the villages concerned is not sustainable.' Now there is no doubt that if the Question of res judicata was out of the way this would be the very issue to be decided by the High Court now and we have therefore to decide whether that finding does operate as res judicata.
5. Mr. Ramesam urges that it is a mixed question of fact and law and, as such, is res judicata. Mr. Narasimha Row relies on certain decisions, In Mangalathammal v. Narayanaswami Aiyar I.L.R. (1907) M. 461 : 17 M.L.J. 250 it was decided that an erroneous decision on a question of law in a previous suit is no bar to a subsequent suit between the same parties to the court deciding the same question provided the decision in the latter case does not in any way question the correctness of the former decree. In Natesa Cheiti v. Vengu Nachiar I.L.R. (1909) M. 102 : 20 M.L.J. 20 it was decided that an Order or decree passed on a mistake of law does not operate as res judicata, with the same reservation, Now it could at once be conceded that a decision on an abstract question of law is not res judicata. But the difficulty arises in applying that proposition to cases that come before the court. It is a very convenient treatment to say that a particular case is a mixed question of fact and law and to hold that the doctrine, therefore, does not apply. But speaking for myself, I find it difficult to appreciate exactly what is meant by the term 'mixed question of fact and law.' It seems to me that the question, whether an issue arising in a case is of law or is of mixed fact and law, must depend on the way in which the issues are framed, quite apart. from the question which is really decided in the case.
6. It must be possible to split up any issue which, as framed, contains questions of fact and law in such a manner that a pure issue of law can be framed on the hypothesis of the finding of fact one way or the other, and I cannot conceive that the whole question should be decided by the frame of the issue. It is a matter of daily experience that some Judges frame issues in a concentrated form, while others analyse the questions at issue between the parties and frame an issue of fact. I must not be understood to mean that the phrase 'mixed question of fact and law' is not one that should be used. I only mean that to me it does not contain a principle which I can apprehend.
7. Before proceeding to examine the cases any further, I think it advisable to examine the section, which is Section 11 of the present Code of Civil Procedure, 'No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties.' Order XIV, Rule 1 states that 'Issues arise when a material proposition of fact or law is affirmed by one party and denied by the other'; and 'Issues are of two kinds; Issues of fact and issues of law.' Applying the language of Order XIV to Section 11 we get the language 'No court shall try any suit or issue of fact or of law in which the matter directly and substantially in issue has been directly and substantially in issue in a. former suit.' Mr. Narasimha Row contends that the word, 'matter' there does not include a point of law and this may be so with regard to some propositions of law decided in a case, but the word 'matter' is used in two of the explanations to the section; the second of which certainly throws light on its meaning; 'Any matter which might and ought to have been made a ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit.' It can hardly be contended that a defence or claim based on a question of law is not 'matter' within the meaning of this explanation. If his contention were correct the decision on a point of law in any suit, (entirely apart from the question of a decision on an issue) would not be final between the parties and a fresh suit could be brought on the same cause of action, provided that a new point of law was raised. So ' matter' must include an issue of law sometimes, and it seems to me that where the point of law directly affects the rights in litigation between the parties to the suit it must be matter within the meaning of the section. The doctrine of res judicata is stated in Halsbury's Laws of England, Vol. 13, p. 331 as follows : 'Where res judicata is pleaded by way of estoppel to an entire cause of action, it amounts to an allegation that the whole legal rights and obligations of the parties are concluded by the earlier Judgment which may involve the determination of questions of Law as well as findings of fact.' In my opinion the phrase 'legal rights and obligations' of the parties and the words 'which may involve the determination of questions of law' cover the same ground as the language 'any suit or issue of law in which the matter directly and substantially in issue &c;, &c.;' in the section. Mr. Ramesam relies on a decision of the Privy Council in Badar Bee v. Habib Merican Noordin (1909) A.C. 615 and a careful examination of this case certainly does shew the principle which the Board applies, quite apart from the particular language of the section. The appellant petitioned to have it declared that the devise and gifts contained in the 6th clause of the testator's will were void, and that the lands comprised therein and the income thereof being undisposed of belonged to the testator's next of kin. By that 6th clause he gave certain lands in Penang which he directed to be called 'the wakkoff of Mahomed Noordin,' to trustees for certain purposes. By a decree of the Supreme Court of the Straits Settlements in 1872, it was held that one of the purposes for which the income of the wakkoff was to be applied was void as not being lawful charitable gifts and that the gifts fell into the undevised residue of the testator's estate. In consequence of this decree a sum of $ 700 out of the rents and profits of the Wakkoff were for several years paid to the next of kin. But the trustees, after that, seem to have declined to pay this amount either to the next of kin or to the residuary legatees, doubtless owing to the residuary legatees having protested against payment to the next of kin. In 1889 one of the next of kin brought a suit in respect of that annual sum of $ 700 against the trustees. The trustees pleaded that they were advised that the amount ought to be paid to the residuary legatees. It was decided by the court that the defendants were estopped from raising that defence. Several years afterwards, the only daughter of the eldest son of the testator filed ft petition for declaration that the property comprised in the wakkoff was at the death of the testator vested in his trustees and executors in trust for the next of kin of the testator living at the time of his death. It was decided by the Court of Appeal that the said lands were vested in the said trustees in trust for the residuary legatees, save and except the two yearly sums amounting to $ 700, which yearly sums were payable to the testator's next of kin - the ground of decision being that, so far as the yearly sum of $ 700 was concerned, the matter was res judicata by the first decree. But they held that that amount of $ 700 formed only a small portion of the total income yielded by the properties mentioned in Clause 6 and that there was nothing in the case from which it could be inferred that the next of kin had been recognised as entitled to anything beyond $ 700. The next of kin appealed to the Privy Council and it was in that appeal that the present judgment was given. Their Lordships say : 'The decree of 1872 was a decision on the construction of the testator's will as to the destination of funds released from the operation of the trust declared by the 6th Clause of the will... The result is that it appears that the point raised by this appeal has already been adjudicated on and it is not open to the court, in the case of the same question arising between the same parties, to review a previous decision not open to appeal,' Now here clearly the decision of the first court was a pure question of law, namely, the construction of the testator's will, the question being to whom any moneys released from the trust by reason of the trust being found not to be good at law should go. The amount affected by the judgment was only a sum of $ 700, but their Lordships have held that the first case decided the legal rights of the parties and that that decision governed claims made subsequently where the same question arose, namely, the construction of the will. It cannot be contended, that this point of law, namely, the true construction of the will as to the destination of released funds, was not a matter 'directly and substantially in issue', in both suits within the meaning of Section 11 and yet it is difficult to see what question of fact was mixed up in it. It is to be noted too that the Board draw no distinction between questions of law and mixed questions of fact and law. In a case reported in Rai Churn Ghose v. Kumao Mohon Dutta Chaudhuri (1897) 1 C.W.N. 688 the High Court held that the decision of a Court on the question whether rent was payable under Section 53 of the Bengal Tenancy Act quarterly or annually was res judicata. The Bench put it on the ground that it was a mixed question of law and fact. I find a difficulty in seeing the question of fact but the decision seems to me in entire accordance with Badar Bee v. Habibe Merican Noordin (1909) A.C. 615. In Bishnu Priya Chowdhurani v. Bhaba Sundari Debya I.L.R. (1901) C. 323 the High Court held that a decision on the question whether a stipulation in a kabuliat was valid and binding between the parties was res judicata. All the cases were considered by Mookerjee, J. in an elaborate judgment reported in Aghore Nath Mookerjee v. Kamini Debi (1909) 11 C.L.J. 461. He applies the test of mixed question of fact and law to the construction of a clause in a will in which process I am, with respect, unable to follow him, but he says that the decision on the question of the true construction regulates the rights of the parties. That latter test seems to me the one applied in Badar Bee v. Habibe Merican Noordin (1909) A.C. 615 and also to give due effect to the words of Section 11 of the Code. The question has been recently considered by the Chief Justice in The Secretary of State for India v. Maharajah of Venkatagiri : (1916)31MLJ97 and the Court had the decision in Badar Bee v. Habibe Merican Noordin (1909) A.C. 615 before it. The cases in Mangalathammal v. Narayanaswami Aiyar I.L.R. (1907) M. 463 and Natesa Chetti v. Vengu Nachiar I.L.R. (1909) M. 102 and all the Calcutta cases were also cited. The learned Chief Justice applies the decision of the Privy Council to the question of the right of Government to resume Inams in Zamindari and decides that such a decision can be said not to be res judicata on the ground that it is erroneous in law. It is to be noted that the Chief Justice does not apply the test of mixed question of fact and law. My conclusion is both on the authority of the Privy Council and on the language of the section that where a decision on a point of law whether it be on the construction of a document or of a statute or on common law or on customary law settles a question that arises directly out of conflicting views as to the rights of the parties it is res judicata. In this view I think that the cases in Parthasaradhi Aiyangar v. Chinna Krishna Aiyangar I.L.R. (1882) M. 304, Mangalathammal v. Narayanaswami Aiyar I.L.R. (1907) M. 463 and Natesa Chetti v. Vengu Nachiar I.L.R. (1909) M. 463 cannot now be regarded as accurately expressing the law though they may be correct on the facts of each particular case, as they are inconsistent with Badar Bee v. Habibe Merican Noordin (1909) a.c. 615 and The Secretary of State for India v. Maharajah of Venkatagiri : (1916)31MLJ97 . In this view the decision of the District Munsif in the 1902 suits that the Zamindar cannot by custom claim the payment of the charge Without maintaining the tanks is res judicata, and the decision of the High Court in 1912 that that decision is res judicata is also res judicata. The appeals in 1108, 1110, 1115, 1118, 1124 will therefore be allowed with costs and the appeals Nos. 1109, 1111, 1113, 1114, 1116, 1117, 1120, 1123, 1125 will be dismissed with costs. The memo, of objections will be dismissed with costs.
Sadasiva Aiyar, J.
1. I entirely agree. The actual decision in Parthasaradhi Aiyangar v. Ghinna Krishna Aiyangar I.L.R. (1882) M. 304 might, perhaps, be supported on the ground that the decree in the plaintiff's favour in an injunction suit affects only the particular defendants who are parties thereto individually and that in a subsequent suit for injunction against other individuals, the questions decided in the first suit cannot be res judicata see Sadagopachariar v. Rama Rao I.L.R. (1902) M. 376 and Sadagopachariar v. Krishnamoorthy Rao I.L.R. (1907) M. 185 .
2. I also think that Wallis, C. J., in The Secretary of State for India v. Maharajah of Venkatagiri : (1916)31MLJ97 has clearly changed the views which he had expressed in the cases reported in Mangalathammal v. Narayanaswami Aiyar I.L.R. (1907) M. 463 and Natesa Chetti v. Vengu Nachiar I.L.R. (1909) M. 463 in the light of the Privy Council decision in Badar Bee v. Habibe Merican Noordin (1909) A.C. 615 and the decision of Mookerjee, J. in Aghore Nath Mookerjee v. Kamini Debi (1909) 11 C.L.J. 461 though my Lord does not expressly say so. I might also refer to Bishnu Priya Chowdhurani v. Bhaba Sundari Debya I.L.R. (1901) C. 318 (at p. 323.) where the distinction is pointed out between the contention that the decision on an abstract question of law (say a question of limitation between the parties) in one suit is res judicata so that the law of the land should itself be deemed to have been altered when that question arises in subsequent suits between the same parties and the contention that a legal right, found declared or awarded in favour of one of the parties in one suit though based on an erroneous view of the law or an erroneous construction of a document is res judicata when the same legal right is controverted in subsequent suits between the same parties, The first contention is unsustainable while the second ought to be upheld. The memo, of objections will stand dismissed with costs, not being pressed.