1. This case has been argued at great length and with great ability, but I do not find it necessary to deal with all the points which counsel on either side have had to lay before us.
2. I shall first dispose of the question of res judicata which lies at the threshold of the case, and the ground on which I hold that there is no bar may be stated in a very few words. The suit of 1853 was heard and decided by a Mufti Sadar Amin, the pecuniary limit of whose jurisdiction would have precluded him from trying the present suit. His decision cannot, therefore, debar us from trying the questions which he decided. Mr. Sundara Aiyar contended that it is not open to us to interfere with the injunction issued by the Sadar Amin, but it is not necessary to decide how far that contention is sound because no party to the present suit is within the prohibition of that injunction : the only defendant who was a party to the suit of 1853 is dead. It is then contended that in as much as the civil judge, on appeal from the Principal Sadir Amin, a judge who could have tried the present suit, decided in a suit of 1871 that the decision of the Mufti Sadar Amin was a bar to the trial of the suit before him, we are bound to hold that the questions now in suit were heard and finally decided between the parties in the suit of 1871. To accept this contention would, it seems to me, strike at the root of the rule which requires that the earlier should, if the decision is to be a bar to further proceedings, be tried by a court which is competent to try the later suit.
3. That rule is obviously enacted to save the jurisdiction of the superior courts, to enable them to investigate questions when they arise in a suit of such value and importance that it is not entrusted to the inferior court even though these questions have been decided by the inferior court in another proceeding of less value and importance - though between the same parties.
4. Now if, as the civil judge decided, (Exhibit H2) the Principal Sadar Amin was bound in the suit of 1871 to accept the decision of the Mufti Sadar Amin, he was unable to try the questions decided by the latter officer, and consequently those questions have never been heard aud decided by a court competent to try the present suit.
5. It would, to my mind, obviously defeat the intention of the legislature if in this way a party could be debarred from pursuing in the superior court a claim not cognizable by the inferior court. And the effect would be to create a bar where the law says there is no bar, for Section 13 of the Civil Procedure Code of 1882 in terms requires for the bar a hearing as well as a final decision by a court competent to try the later suit.
6. The suit before the Principal Sadar Amin was one which the Mufti Sadar Amin could have tried, a suit for damages for Rs. 1,050, and, apart from any question as to identity of parties, or privies of parties, the civil judge's decision was apparently right, but that decision only refused to hear and finally decide the questions raised by the plaintiffs.
7. Mr. Sundara Aiyar was driven to contend that the questions must be held to have been 'heard' by the civil judge on the ground that the judgment of the Mufti Sadar Amin is made by law to operate as conclusive proof that the questions therein decided were rightly decided. But this contention is illogical : the law of evidence makes no distinction between one court and another; what is conclusive proof for the Principal Sadar Amin must be conclusive proof for the Subordinate Judge; and Mr. Sundara Aiyar did not deny that, but for the intervention of the suit of 1871 the judgment of the Mufti Sadar Amin would not bind the Subordinate Judge in this suit. The law does not compel the court trying the later suit to hold, without trial, that the decision in the earlier suit was correct : it merely estops the parties to the earlier suit and their privies from showing that it is incorrect. The judge trying the later suit must give effect to the decision, but he is not bound to hold that it is right.
8. I am, for these reasons, of opinion that the trial of the present suit by the Subordinate Judge was not barred by Section 13 of the Code of 1882, and it is unnecessary to consider whether the reasoning which led the Subordinate Judge to the same conclusion is sound or not.
9. Assuming, then, that the suit is cognizable by the civil courts, a question on which I find it unnecessary to express an opinion, it remains to be seen whether the plaintiffs have established the right which they claim. As the Subordinate Judge says, they must, to do this, prove a grant or such long uninterrupted user as would give rise to the presumption of a legal origin, and I agree with the Subordinate Judge that they have done neither.
10. I assume that the documents rejected by the Subordinate Judge are genuine, and admissible in evidence; it is then for the plaintiffs to show by strict proof that they are lineal descendants of the grantees of the monopoly; this they one and all have entirely failed to do. The judgments in 1835 and 1853 are appealed to in their support, but neither of them deals with the question : in 1835 no evidence was given on their behalf; and in 1853, four witnesses gave hearsay evidence, but the Mufti Sadar A min does not appear to have thought it necessary to give a finding nor can it be said that the matter was then beyond doubt; had that been so the claims of the plaintiffs would not have been ignored by the contesting parties to the suit of 1835, and in 1853 their grants were denied, though the defendants, apparently finding themselves unable to prove the negative, did not appear at the final hearing. The fact that they produced the documents in 1835 is not sufficient to show that any one of them was lineally descended from any one of the original grantees. It is not stated (Exhibit F) who were the twenty Tamil Brahmins who produced the documents and two of the families of the grantees are, it is said, extinct. The evidence to which our attention was invited in the present suit is altogether worthless, and, in my opinion, the plaintiffs have entirely failed to prove their claim to be descendants of the grantees of 1670.
11. I also agree with the Subordinate Judge that they have failed to make out any claim based on long user or custom. In 1835 there can hardly have been a long established custom in their favour, or it would not have been ignored by the parties to the suit. In the judgment in the suit of 1834, Exhibit F, no question of custom is considered : the grants are found to be genuine, and that fact and the fact that the plaintiffs in the suit were in any event non-suited, are stated as reasons for the order in favour of the ancestors of the present plaintiffs. That order was afterwards set aside as made without jurisdiction, but that does not affect the question. In 1853 the Mufti Sadar Amiu does not expressly rind that a custom was established, and his judgment is of little help to us. He bases his judgment on certain documents, none of which, so far as we know their contents, establishes the alleged custom of exclusive enjoyment and on the depositions of four witnesses; but, as we do not know what the witnesses said, their evidence as to custom cannot, be regarded as of much value to us. The judgment, as a whole, does not appear to me to be valuable for its conclusions.
12. Since 1853 it is clear that the plaintiffs have not been allowed to exercise their alleged monopoly without interruption : we have unimpeachable evidence that the defendants were, since 1864 at any rate, serving as purohits to pilgrims of the four classes to which the plaintiffs claim the exclusive right of ministration, and I concur with the Subordinate Judge in his conclusion that the evidence of the plaintiffs that such service was done with their permission is untrustworthy : it is remarkably vague and unsatisfactory. No doubt the plaintiffs in 1871 succeeded on the ground of res judicata in procuring a reaffirmance of the decision of 1853, and a decree for damages (Exhibit H2). Whether the damages were paid or not does not appear. I may assume that they were : but clearly the defendants continued to enjoy the profits of ministration to the four classes, and the plaintiffs never ventured to make any attempt to enforce the injunction of 1853 or obtain a new one.
13. The strongest evidence on the plaintiffs' side is, to my mind, Exhibit J, an agreement of 1880 in which the purohits agree to divide between them the gifts made by the pilgrims of seventeen classes, but do not include the four classes to which the plaintiffs' claim relates, but the agreement is inconclusive on the question whether the four classes were left to the plaintiffs exclusively, and we find chat the defendants continued in 1880 and the following years their ministrations to those classes.
14. It is suggested that the plaintiffs' inaction after the suit of 1871 and the agreement, Exhibit J, afford strong evidence in favour of the allegations of the plaintiffs that the defendants' ministrations were licensed by themselves (the plaintiffs), but I do not think it possible that if it were true that the plaintiffs had for 30 years and more been licensing the exercise of the purohitam by the defendants, that fact would not have been stated in the plaint, or made the subject of an issue. I am certainly not prepared to hold that the decree of 1871 or the agreement of 1880 are sufficient to establish the plaintiffs' case of permissive exercise of the right in question.
15. Holding that the plaintiffs have failed to show title under a grant or by custom or uninterrupted user, I find it unnecessary to deal with the other questions argued. I would dismiss the appeal with costs.
16. I agree.