1. The appellants in this case were the defendants in O.S. No. 21 of 1903 on the file of the Subordinate Court, Madura West. The respondent, who was the plaintiff in that suit, obtained a decree against the Appellants for certain lands together with mesne profits from the date of the suit to the delivery of possession. The respondent obtained possession in execution as well as mesne profits from the 30th July 1903 (date of the plaint) to the 13th December 1904. The decree in O.S. No. 21 was reversed by this Court on appeal. The appellant obtained re-delivery of the properties in question and re-payment of the amount he had paid as mesne profits. The present application is for the mesne profits during the time that the respondent was in possession, that is, from the 13th December 1904 to the 9th November 1910. ' The dispute relates to the profits of items Nos. 1, 2, 5, 6, 7 and 8. The Subordinate Judge disallowed any profits for items Nos. 1, 6 and 7 on the ground that they were uncultivable lands. He also held that three fourths Kuli of item No. 2 was cultivable and 13 kalis of item No. 5 was not cultivable- He allowed profits on the cultivable lands at 7 kalams per kuli for punja and 10 kalams per kuli for nanja lands. Item No. 1 alone was originally punja, the remaining items being punjah.
2. The first point argued by Mr. Venkatrama Sastri on behalf of the appellants is that the respondent is estopped from contending that any of the lands now held to be uncultivable by the Subordinate Judge were really of that character and that moreover the question whether they are cultivable or not is res judicata by reason of the order of the Subordinate Judge in E. P. No. 67 of 1905 in which the respondent obtained judgment for mesne profits against the appellants between the date of the plaint in O.S. No. 21 and the date of delivery of possession to the Respondent. These pleas arise out of the circumstance that, in E.P. No. 67 when the possessions of the parties were the reverse of what they are now, their respective contentions were exactly the opposite of what they are now; that is, while the respondent then urged that all the lands were cultivable, the appellants pleaded that those now in dispute were all waste and uncultivable. After a Commissioner had reported on the question, the Subordinate Judge held that the lands which have now been held to be uncultivable were cultivable with reasonable diligence and awarded mesne profits to the respondent for the period in question. It is admitted that there has been no alteration in the character of the lands after the respondent obtained possession in execution. With respect to the first contention of estoppel, apart from the bar of res judicata, the argument urged is that a party cannot be permitted to take up inconsistent positions in the course of the same litigation and to profit by doing so. The respondent retorts by saying that the appellants are equally estopped from adopting a position inconsistent with what they assumed in E. P. No. 67. We are unable to uphold this argument of estoppel. The rule against a party being allowed to take up inconsistent positions has really no application to the circumstances of this case. It applies only where a party seeks to defeat his opponent by successive inconsistent positions as in Ekabbar Sheik v. Hara Bewah (1910) 13 C,L.J. 1 or when having obtained a benefit by adopting one position he afterwards tries to assume a different and contradictory position while retaining the advantage already obtained by his former position. See Halsbury's Laws of England Vol. 13 p. 364; Black on Judgments Vol. 2 para 632 where the author observes, ' But it is held, in some of the cases, that a party who alleges but fails to establish a certain state of facts is not estopped in a subsequent suit between the same parties, and concerning the same subject matter from alleging a different and inconsistent state of facts.' The appellant in this case failed to prove the contention he urged in the respondent's previous application for mesne profits. The respondent seeks to obtain no advantage under the order on that application as he has paid back the amount got by him from the appellants in obedience to that order.
3. We are also of opinion that the argument of res judicata must equally fail. The parties then occupied positions which were the reverse of their present contentions. The rule of res judicata cannot apply in such a case. It is, no doubt, true that it is immaterial in determining the applicability of the rule that the petitioner in the one case was a respondent in the other, provided their respective contentions are the same. But the basis of the principle is that the parties had the opportunity of fighting out their present quarrel on a previous occasion. The doctrine is not based on the intrinsic effect to be attached to an adjudication by the Court alone but on a rule of public policy that a question which has been once fought out between the parties should not be re-agitated between them again. It necessarily involves that the case of both the parties was the same on both the occasions. A party against whom a judgment has been rendered is not permitted to show that it is erroneous whether as plaintiff or defendant in a subsequent proceeding, but not a party in whose favor it was rendered; the latter may be prevented from doing so, where to permit it will contravene the principle of not allowing a person to derive an equitable benefit by adopting inconsistent positions; but the principle of res judicata has no application to such a case, except where the subject matter of the two proceedings and not merely a point at issue is the same. It would be extraordinary to hold that a party is concluded by a decision against his adversary. An illustration of the unreasonableness of such a view is afforded by the manner in which the finding in E. P No. 67 was arrived at with regard to item No. 1 in this case. The Commissioner whose report was adopted by the Subordinate Judge based his conclusion with regard to the character of the item, on the ground that the 2nd defendant, one of the present appellants, did not do what it was essential for his case that he should do, namely, to point out pariah No. 14. Can he be permitted to say that a finding based on his failure to do something should be availed of by himself against his opponent whose interest then was to disprove his contention? We are of opinion that it would be unreasonable to do so. We disallow this contention also.
4. On the merits, we see no reason to differ from the view taken by the Subordinate Judge who has fully examined the evidence in the case. We agree in the reasons he has given for his finding.
5. The respondent has presented a memorandum of objections claiming the value of certain improvements made by him between the dates of the decree of the Subordinate Judge in O.S. 21 and the judgment of this court in appeal reversing it. We cannot accept the contention that a party to the litigation is entitled to receive for the improvements made by him pendente lite with the full knowledge of the risk he runs in doing so. It cannot be held that he made the improvements bona fide when he was bound to be fully aware that the decree that he had obtained might be reversed in appeal. No authority has been cited which would justify a contrary view. The rule laid down in Mathumsa Rowthan v. Apsa Bin : (1911)21MLJ969 with regard to an auction purchaser who is not a party to the suit being entitled to compensation for improvements made by him when he is subsequently ousted from possession on account of the sale being set aside, is not applicable to a party to a litigation concerning immoveable property making improvements during the progress of the contest between the parties. The Privy Council has held that a party to a suit who purchases properties in court auction will not have the privileges of a stranger purchaser. See Zainalabudinkhan v. Muhammad Ashgar Ali Khan ILR (1887) A. 166. See also Sadasiva Aiyar v. Muthusabapathi Chetty ILR (1881) M. 106. We therefore disallow the memorandum of objections also. Both the appeal and the memorandum of objections are dismissed with costs.